Minimizing employee benefits litigation through effective claims administration procedures

With the marked increase in employee benefits litigation, employers and benefit plan sponsors are searching for ways to avoid such lawsuits, minimize their exposure in such lawsuits, and maximize their ability of prevailing in such lawsuits. Benefit claim processing and administration have become fertile areas for lawsuits. Consequently, improving benefit claim processing and administration obviously becomes important, and an area where affirmative actions by the employer and plan sponsor will produce many litigation-related benefits. This article will discuss, in a very simple and straightforward manner, various actions an employer or plan sponsor can take which will decrease the number of lawsuits, minimize the potential exposure if a lawsuit is filed, and maximize the ability of prevailing if a lawsuit is filed.     

Enforcement of Civil Rights Law in Private Workplaces: The Effects of Compliance Reviews and Lawsuits Over Time

Has federal antidiscrimination law been effective in moving women and minorities into management? Early studies show that government affirmative action reviews improved the numbers, and rank, of blacks, but evidence of what has happened since 1980 is sparse. There is little evidence that civil rights lawsuits improved the employment status of women or African Americans. We examine establishment‐level effects of compliance reviews and lawsuits on the percentage of women and blacks in management. We find that compliance reviews, which alter organizational routines, had stronger and more lasting effects than lawsuits, which create disincentives to discriminate. We also find that deregulation was more consequential for compliance reviews than for lawsuits: Compliance reviews initiated in the 1980s were less effective than those initiated in the 1970s. Not so for lawsuits. Compared to lawsuits, compliance reviews appear to have a greater capacity to elicit lasting organizational change, but their effects are mediated by the regulatory environment.     

关于刑事附带民事诉讼的合理性探讨

刑事附带民事诉讼对于提高诉讼效率,防止矛盾判决具有十分重大的意义。由于两种诉讼性质上的差异以及立法上的 不完善,使我国的刑附民程序在设计上有诸多不合理之处,应将民事诉讼从刑事诉讼中分离出去,归并到民事诉讼中,保证性质不同 的诉讼按照自身的规律来进行。     

Employment discrimination: age discrimination and sexual harassment

This is the era of deregulation—and yet in U.S. labor markets, at least, the legal regulation of the employment relation has been expanding in recent decades. The laws have been stiffened and their enforcement, mainly through private lawsuits, has been beefed up. Currently the two most important areas, in terms of impact on employers, are age discrimination and sexual harassment, and these will be my focus.     

程序正义视阈中的我国侦查程序

正当法律程序所包含的程序公正性与合理性的标准,实际上构成了人们所公认的程序正义理念的最基本内容。具有现代性的中国侦查程序理念并非都是本土资源自然生长的结果,但如果对西方现代侦查程序理念进行＂照搬式＂的移植,会使我国侦查程序成为诉讼诸多＂病灶＂的集中地之一。因此,应从侦查程序正义理念的基本价值为起点,在剖析我国侦查程序现状与缺陷的基础上,对未来侦查程序的构建提出一些有益的思考和建议。     

法官合并审理自由裁量权之规制——以诉的客观合并适用为中心

案多人少背景下诉的客观合并可以成为程序扩容方式。目前法官对同一当事人间的数诉在是否合并审理上专断恣意,表现为诉的合法性评价混乱和合并形态的肯认无序。前者应通过合并要件设置树立诉的合法性评价标尺,后者应通过特定合并形态的肯认确定当事人请求能多大程度上拘束法院。在合并要件方面,须通过法规范明确同一原告对同一被告提出数诉、法院对数诉之一具有管辖权、数诉必须适用同一诉讼程序三项合并要件,防止法官在诉的合法性评价上专断;在合并形态肯认方面,应通过颁布指导性案例确立有牵连关系的单纯合并与预备合并,及时回应当事人提起数诉的审理裁判要求。     

Prison mental health services: results of a national survey of standards, resources, administrative structure, and litigation

The formation of adequate mental health systems within prisons has accelerated as a result of successful class action lawsuits. Our recent national survey questioned all state correctional departments about the existence of standards in each system, compliance with such standards, prevalence of class action lawsuits involving the issue of providing adequate mental health services for inmates, issues related to consent decrees, available mental health resources within the correctional system, and the administrative structure of the mental health system. Our purpose was to identify those factors correlated with certified class action lawsuits involving issues related to mental health services. Twenty-one states were involved in such litigation. Only the presence of psychiatric hospitals operated by the department of corrections correlated with the presence of certified class action lawsuits involving mental health services. Prison systems larger than 15,000 inmates were at higher risk for such litigation. Smaller systems having psychiatric hospitals run by the state mental health agency appeared to be at less risk for such litigation.     

WHO'S YOUR DADDY?: THE INHERENT UNFAIRNESS OF THE MARITAL PRESUMPTION FOR CHILDREN OF UNMARRIED PARENTS*

Many states have marital presumptions of legitimacy, which provide children born to married parents with protection against paternity lawsuits questioning their legitimacy. However, most states do not have legitimacy presumption statutes for unmarried couples. This lack of equality between married and unmarried couples makes it so that children born to unmarried parents, who have developed a psychological bond with a man they have always thought to be their father, are not afforded the same protection as other children in similar situations, simply because their parents were not married at the time of their birth. Therefore, this Note advocates for states to amend their paternity statutes to provide protection against nonpaternity lawsuits to psychological fathers and their psychological children. State statutes should provide a psychological father with the right to be declared the legal parent of his psychological child in cases where the child's legal father has been substantially absent from the child's life.     

再论刑事立案法律监督之完善

刑事立案监督是人民检察院进行法律监督的重要组成部分,也是启动刑事诉讼程序的关键环节,它对规范刑事立案权的正确行使,纠正立案活动中的违法行为具有重要的作用,但目前司法实践存在不少问题影响了检察机关实施刑事立案监督工作取得的预期法律效果。主要从我国立法关于检察机关刑事立案监督的程序规定入手,对刑事立案监督的对象、范围、标准以及具体实施中的一些问题进行了探讨,并结合我国司法实践和现实需要,从其价值实现角度提出立法必须明确刑事立案监督对象、完善刑事立案监督范围、建立专门刑事立案监督部门、完善刑事立案监督程序、完善刑事立案监督标准等。     

Patent trolls in China: Some empirical data

Prior research found that the Chinese patent system is more pro-patentee than once believed. Patent owners performed much better in both infringement lawsuits and post-grant validity reviews in China than in many other countries, such as the United States and Germany. Also, after a finding of infringement, Chinese courts were quite lenient with regard to permanent injunctions. All these pro-patentee tendencies, together with the rapid growth of China's software industry, cast doubt on the prevalence of troll activities in China. This article analyzes 3435 patent infringement lawsuits decided by local people's courts in China in 2015 and 2016 and provides some valuable insights into two important questions: how often do patent trolls litigate in China, and do they adopt different litigation tactics from practicing entities? Based on empirical data, this article finds that, interestingly, both the number and the size of patent trolls in China are relatively small. Although nearly half (1534, or 44.7%) of all patent infringement lawsuits were initiated by non-practicing entities (NPEs), individual inventors, instead of professional businesses, accounted for an overwhelming majority of all NPE cases (1528, or 99.6%). Patent assertion entities (PAEs), by contrast, only initiated four out of 3435 cases (0.1%) in the two-year period under review. If only patents in the computer industry are taken into consideration, then PAEs initiated zero computer-related lawsuits. Nonetheless, this article does observe some trollish litigation tactics worthy of attention and further research. There were 47 repeat litigants – litigants who initiated 10 or more cases; some performed “commercial enforcement,” asserting patents against multiple small retailers instead of against one large manufacturer; and patent owners, on average, waited for a rather long time before enforcing their patents in China. All these behaviors may introduce bias to the incentives to innovate and put pressure on the overall functioning of the Chinese patent system.     

我国司法鉴定立法现状及展望

随着社会的发展和科技的进步,诉讼中遇到的专业性疑难问题越来越多,司法鉴定的重要性也日益受到人们的重视。由于我国目前缺少统一的司法鉴定立法,相关制度构建不够完善,以至于司法鉴定实践中法律规范缺位,秩序混乱,问题颇多,制约了司法鉴定活动的开展,也在不同层面上造成了不良的社会影响。本文着重对我国司法鉴定立法现状和立法变迁予以解读,深入剖析司法鉴定的现实困境,主张在立足现实的基础上寻求破解之道,从理论、实践、宏观、微观的多重角度对我国司法鉴定统一立法的可行性进行系统探讨,并在强调关注司法鉴定统一立法若干要素的基础上对我国未来的《司法鉴定法》予以展望。     

Reform of lawsuit system and revision of filing conditions

Currently the Civil Procedure Law stipulates rather “high conditions” for lawsuits and the reason is that in the institutional design, we have equated the conditions of adjudicating the merits with those of lawsuits and the initiation of lawsuits. The trial of conditions of adjudicating the merits are usually conducted after the beginning of lawsuits, while in China it is carried out before the beginning of lawsuits, and thus the related procedures have become a kind of “pre-lawsuit procedures”, and theoretical and institutional confusions and contradictions arise. This article is of the opinion that filing conditions should be separated from those of adjudicating the merits, and the trial of the latter should be incorporated into the proceedings. A “dual” trial structure should be constructed, that is, the trial of conditions for adjudicating the merits goes parallel with that of merit disputes. In the attempt to improve civil procedures, attention should be given to the institutionalization of conditions of adjudicating the merits, which should be reasonably designed and integrated into relevant systems. When reforming the lawsuit system, we should also adjust the courts’ trial organs. We recommend not setting up any case-filing or appeal divisions and removing the existing “separation of case-filing and trial”. __________ Translated from Law Study, No. 6, 2004     

Gastrointestinal hemorrhage from an internal jugular abscess in an intravenous drug addict

The usual death of a long-time heroin user is described. The significance of this case is that death occurred suddenly and unexpectedly during incarceration. In the United States, such deaths are frequently followed by lawsuits against the prison authorities. Drug abuse can cause death in many varied ways.     

New York Lead-Paint Case Update

The contaminated water supply in Flint, Michigan, highlighted lead issues in a relatively new context: drinking water. Lead-paint lawsuits, however, have filled court calendars for many years in many jurisdictions. This article examines a variety of recent lead-paint decisions issued by courts in New York—from trial level, to appellate, to the state's highest court, the New York Court of Appeals. As these cases suggest, lead-paint complaints against landlords and property owners are likely to continue to be filed in New York courts for quite some time to come.     

Retrospective analysis of medicolegal cases and evaluation for erectile function.

Erectile function (EF) is an important question in lawsuits for divorce, rape, and damages. In this study, a method to evaluate medicolegal cases is defined, and the characteristics of the 265 cases screened for EF between 1989 and 1997 were analyzed. Interview, physical examination, psychometric evaluation, nocturnal penile tumescence, serum hormone levels and blood chemistry, intracavernosal drug injection, penile Doppler ultrasonography, and pharmacocavernosometry and pharmacocavernosography tests were used for diagnosis. The tests performed were selected according to the age of the subject. Of the 265 cases 128 (48.3%) were for divorce, 116 (43.7%) were for rape, and 21 (8%) were for indemnity relating to lawsuits for damages. In only 7 cases (2.7%) was the defendant <15 years of age. Organic pathology for erectile dysfunction (ED) was present in 22% of lawsuits for divorce, 40.5% of lawsuits for rape, and 33.4% of lawsuits for damages. Three men in cases of divorce and 2 men after genital trauma due to traffic accident suffered psychological ED. This study indicates that lawyers may abuse the assertion of ED in lawsuits for divorce and rape. In 128 divorce cases the defendant was accused of being impotent, but evaluation proved that 75.8% had normal EF. In lawsuits for rape, 59.5% of defendants had normal EF although the lawyers of the rapist claimed their clients were impotent. The investigation, interpretation, and characteristics of medicolegal cases may differ in countries with different cultures.     

生态环境损害赔偿诉讼与环境民事公益诉讼关系探究——兼析《民法典》生态赔偿条款

生态环境损害赔偿诉讼与环境民事公益诉讼大同小异,交叉重叠,关系有待厘清。生态环境损害赔偿诉讼属于以国家所有权为基础的"公产诉讼",由监管者在必要时依法提起;环境民事公益诉讼属于由非监管者补充行使监管职权的"代位执法诉讼",以补充监管不足为必要。两诉关系的妥善处理应秉持类型化思维,正确认识两类诉讼的功能差异及不同主体的各自优势,合理分工,衔接配合。《民法典》第1234条和1235条对两诉关系的处理存在诸多模糊之处,需要理论上的正确解读和后续配套立法的区别、完善。     

优势证据在行政诉讼中的构成及适用——以廖宗荣案为分析对象

《最高人民法院公报》2007年第1期刊载的“廖宗荣诉重庆市公安局交通管理局第二支队道路交通管理行政处罚决定案”运用的“优势证据”标准引起了学界的广泛关注。本文尝试以这一案例为分析样本，通过对判决主文的剖析，希冀从中提炼出“优势证据”的若干构成要件；并通过对相关案例的对比，以期发现优势证据在行政诉讼语境中的适用前提。分析显示，公报案例中的“优势证据”暗含了三个构成要件，分别为身份要件、真实要件、关系要件；而数个案例的对比分析揭示，公报案例中的“优势证据”只适用于一对一证据的情境。     

"Insuring" the continued solvency of pharmaceutical companies in the face of product liability class actions

Costly product liability lawsuits continue to plague the pharmaceutical industry, and insurance to cover these losses is severely inadequate. Furthermore, questionable regulation of drugs exists once a pharmaceutical has passed FDA approval. This article describes a plan that uses a capitalistic, rather than a governmental, approach to solve both the insurance and the quality control problems. Although the proposed plan has never been used to insure pharmaceutical companies, different permutations of it have been used to insure other litigation-prone industries. Success from the proposed insurance entity results from the combined knowledge of scientists and actuaries to provide both protection from product liability lawsuits for the pharmaceutical industry and enhanced post-market surveillance of pharmaceuticals.     

Doctrinal considerations for fast-food obesity suits

Lawsuits brought by obese plaintiffs against fast-food chains have been the subject of some derision in the late-night talk shows and popular press, and have not succeeded so far. But the common law tort theories on which such lawsuits should be grounded are straightforward, unremarkable, and mainstream. This article first offers an overview of obesity-related health problems that can arise from fast-food diets. It then critiques the seminal Pelman v. McDonald's--how it was pleaded and how it should have been pleaded--and offers alternative legal theories under which such lawsuits can be brought in the future.     

确保审判不受传媒干扰的法律思考

传媒对诉讼案件的不规范报道在很大程度上干预了独立审判 ,而现代法制国家关于报道诉讼案件应遵循的规则早已成为系统的法律规定。我国应借鉴域外的调整规则 ,根据中国国情 ,应对传媒采访报道诉讼案件的时间、方式、范围以及对录音录像等设备的使用进行规范 ,设置传媒采访报道诉讼案件的相应规则 ,并运用现有的法律规定 ,最大限度地消除传媒报道对审判的负面影响 ,确保审判不受其干扰。