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Most experts would agree that the current medical malpractice system in the United States does not work effectively either to compensate victims fairly or prevent injuries caused by medical errors. Policy responses to a series of medical malpractice crises have not resulted in effective reform and have not altered the fundamental incentives of the stakeholders. In Medical Malpractice, economist Frank Sloan and lawyer Lindsey Chepke examine the U.S. medical malpractice process from legal, medical, economic, and insurance perspectives, analyze past efforts at reform, and offer realistic, achievable policy recommendations. They review the considerable empirical evidence in a balanced fashion and assess objectively what works in the current system and what does not. Sloan and Chepke argue that the complexity of medical malpractice stems largely from the interaction of the four discrete markets that determine outcomes--legal, medical malpractice insurance, medical care, and government activity. After describing what the evidence shows about the functioning of medical malpractice, types of defensive medicine, and the effects of past reforms, they examine such topics as scheduling damages as an alternative to flat caps, jury behavior, health courts, incentives to prevent medical errors, insurance regulation, reinsurance, no-fault insurance, and suggestions for future reforms. Medical Malpractice is the most comprehensive treatment of malpractice available, integrating findings from several different areas of research and describing them accessibly in nontechnical language. It will be an essential reference for anyone interested in medical malpractice.Frank A. Sloan is J. Alexander McMahon Professor of Health Policy and Management and Professor of Economics at Duke University. He is the coauthor of The Price of Smoking (MIT Press, 2004) and author or editor of many other books on health economics. Lindsey M. Chepke, an attorney, is a Research Associate at the Center for Health Policy at Duke University.

This book is a passionate call for citizen action to uphold the rule of law when government does not. Arguing that post-9/11 legislation and foreign policy severed the executive branch from the will of the people, Elaine Scarry in Rule of Law, Misrule of Men offers a fierce defense of the people’s role as guarantor of our democracy. She begins with the groundswell of local resistance to the 2001 Patriot Act, when hundreds of towns, cities, and counties passed resolutions refusing compliance with the information-gathering the act demanded, showing that citizens can take action against laws that undermine the rights of citizens and noncitizens alike. Scarry, once described in the New York Times Sunday Magazine as “known for her unflinching investigations of war, torture, and pain,” then turns to the conduct of the Iraqi occupation, arguing that the Bush administration led the country onto treacherous moral terrain, violating the Geneva Conventions and the armed forces’ own most fundamental standards. She warns of the damage done to democracy when military personnel must choose between their own codes of warfare and the illegal orders of their civilian superiors. If our military leaders uphold the rule of law when civilian leaders do not, might we come to prefer them? Finally, reviewing what we know now about the Bush administration’s crimes, Scarry insists that prosecution--whether local, national, or international--is essential to restoring the rule of law, and she shows how a brave town in Vermont has taken up the challenge.Throughout the book, Scarry finds hope in moments where citizens withheld their consent to grievous crimes, finding creative ways to stand by their patriotism.

In this book, Norman Cantor analyzes the legal and moral status of people with profound mental disabilities—those with extreme cognitive impairments that prevent their exercise of medical self-determination. He proposes a legal and moral framework for surrogate medical decision making on their behalf. The issues Cantor explores will be of interest to professionals in law, medicine, psychology, philosophy, and ethics, as well as to parents, guardians, and health care providers who face perplexing issues in the context of surrogate medical decision making.

The profoundly mentally disabled are thought by some moral philosophers to lack the minimum cognitive ability for personhood. Countering this position, Cantor advances both theoretical and practical arguments for according them full legal and moral status . He also argues that the concept of intrinsic human dignity should have an integral role in shaping the bounds of surrogate decision making. Thus, he claims, while profoundly mentally disabled persons are not entitled to make their own medical decisions, respect for intrinsic human dignity dictates their right to have a conscientious surrogate make medical decisions on their behalf. Cantor discusses the criteria that bind such surrogates. He asserts, contrary to popular wisdom, that the best interests of the disabled person are not always the determinative standard: the interests of family or others can sometimes be considered. Surrogates may even, consistent with the intrinsic human dignity standard, sometimes authorize tissue donation or participation in nontherapeutic medical research by profoundly disabled persons. Intrinsic human dignity limits the occasions for such decisions and dictates close attention to the preferences and feelings of the profoundly disabled persons themselves. Cantor also analyzes the underlying philosophical rationale that makes these decision-making criteria consistent with law and morals.

The United States, home to five percent of the worlds’ population, now houses twenty-five percent of the world’s prison inmates. Our incarceration rate--at 714 per 100,000 residents and rising--is almost forty percent greater than our nearest competitors (the Bahamas, Belarus, and Russia). More pointedly, it is 6.2 times the Canadian rate and 12.3 times the rate in Japan. Economist Glenn Loury argues that this extraordinary mass incarceration is not a response to rising crime rates or a proud success of social policy. Instead, it is the product of a generation-old collective decision to become a more punitive society. He connects this policy to our history of racial oppression, showing that the punitive turn in American politics and culture emerged in the post-civil rights years and has today become the main vehicle for the reproduction of racial hierarchies. Whatever the explanation, Loury agues, the uncontroversial fact is that changes in our criminal justice system since the 1970s have created a nether class of Americans--vastly disproportionately black and brown--with severely restricted rights and life chances. Moreover, conservatives and liberals agree that the growth in our prison population has long passed the point of diminishing returns. Stigmatizing and confining of a large segment of our population should be unacceptable to Americans. Loury’s call to action makes all of us now responsible for ensuring that the policy changes.

Reclaiming the Environmental Agenda

The past twenty-five years have seen a significant evolution in environmental policy, with new environmental legislation and substantive amendments to earlier laws, significant advances in environmental science, and changes in the treatment of science (and scientific uncertainty) by the courts. This book offers a detailed discussion of the important issues in environmental law, policy, and economics, tracing their development over the past few decades through an examination of environmental law cases and commentaries by leading scholars. The authors focus on pollution, addressing both pollution control and prevention, but also emphasize the evaluation, design, and use of the law to stimulate technical change and industrial transformation, arguing that there is a need to address broader issues of sustainable development.

Environmental Law, Policy, and Economics, which grew out of courses taught by the authors at MIT, treats the traditional topics covered in most classes in environmental law and policy, including common law and administrative law concepts and the primary federal legislation. But it goes beyond these to address topics not often found in a single volume: the information-based obligations of industry, enforcement of environmental law, market-based and voluntary alternatives to traditional regulation, risk assessment, environmental economics, and technological innovation and diffusion. Countering arguments found in other texts that government should play a reduced role in environmental protection, this book argues that clear, stringent legal requirements--coupled with flexible means for meeting them--and meaningful stakeholder participation are necessary for bringing about environmental improvements and technologicial transformations.

This book is regularly updated online at http://mitpress.mit.edu/ashford_environmental_law

Over the past twenty years, economic theory has begun to play a central role in antitrust matters. In earlier days, the application of antitrust rules was viewed almost entirely in formal terms; now it is widely accepted that the proper interpretation of these rules requires an understanding of how markets work and how firms can alter their efficient functioning. The Handbook of Antitrust Economics offers scholars, students, administrators, courts, companies, and lawyers the economist’s view of the subject, describing the application of newly developed theoretical models and improved empirical methods to antitrust and competition law in both the United States and the European Union. (The book uses the U.S. term "antitrust law" and the European "competition law" interchangeably, emphasizing the commonalities between the two jurisdictions.)

After a general discussion of the use of empirical methods in antitrust cases, the Handbook covers merger agreements, abuses of dominance (or unilateral effects), and market features that affect the ways firms compete. Chapters examine such topics as analyzing the competitive effects of both horizontal and vertical mergers, detecting and preventing cartels, theoretical and empirical analyses of vertical restraints, state aids, the relationship of competition law to the defense of intellectual property, and the application of antitrust law to "bidding markets," network industries, and two-sided markets.

Contributors:
Mark Armstrong, Jonathan B. Baker, Timothy F. Bresnahan, Paolo Buccirossi, Nicholas Economides, Hans W. Friederiszick, Luke M. Froeb, Richard J. Gilbert, Joseph E. Harrington, Jr., Paul Klemperer, Kai-Uwe Kuhn, Francine Lafontaine, Damien J. Neven, Patrick Rey, Michael H. Riordan, Jean-Charles Rochet, Lars-Hendrik Röller, Margaret Slade, Giancarlo Spagnolo, Jean Tirole, Thibaud Vergé, Vincent Verouden, John Vickers, Gregory J. Werden.

Antitrust law regulates economic activity but differs in its operation from what is traditionally considered "regulation." Where regulation is often industry-specific and involves the direct setting of prices, product characteristics, or entry, antitrust law focuses more broadly on maintaining certain basic rules of competition. In these lectures Michael Whinston offers an accessible and lucid account of the economics behind antitrust law, looking at some of the most recent developments in antitrust economics and highlighting areas that require further research. He focuses on three areas: price fixing, in which competitors agree to restrict output or raise price; horizontal mergers, in which competitors agree to merge their operations; and exclusionary vertical contracts, in which a competitor seeks to exclude a rival.

Antitrust commentators widely regard the prohibition on price fixing as the most settled and economically sound area of antitrust. Whinston's discussion seeks to unsettle this view, suggesting that some fundamental issues in this area are, in fact, not well understood. In his discussion of horizontal mergers, Whinston describes the substantial advances in recent theoretical and empirical work and suggests fruitful directions for further research. The complex area of exclusionary vertical contracts is perhaps the most controversial in antitrust. The influential "Chicago School" cast doubt on arguments that vertical contracts could be profitably used to exclude rivals. Recent theoretical work, to which Whinston has made important contributions, instead shows that such contracts can be profitable tools for exclusion. Whinston's discussion sheds light on the controversy in this area and the nature of those recent theoretical contributions.

Sponsored by the Universidad Torcuato Di Tella

The revelations of prisoner abuse and torture at Abu Ghraib and more recently at Guantánamo were shocking to most Americans. And those who condemned the treatment of prisoners abroad have focused on U.S. military procedures and abuses of executive powers in the war on terror, or, more specifically, on the now-famous White House legal counsel memos on the acceptable limits of torture. But in The Story of Cruel and Unusual, Colin Dayan argues that anyone who has followed U.S. Supreme Court decisions regarding the Eighth Amendment prohibition of "cruel and unusual" punishment would recognize the prisoners' treatment at Abu Ghraib and Guantánamo as a natural extension of the language of our courts and practices in U.S. prisons. In fact, it was no coincidence that White House legal counsel referred to a series of Supreme Court decisions in the 1980s and 1990s in making its case for torture.Dayan traces the roots of "acceptable" torture to slave codes of the nineteenth century that deeply embedded the dehumanization of the incarcerated in our legal system. Although the Eighth Amendment was interpreted generously during the prisoners' rights movement of the late 1960s and 1970s, this period of judicial concern was an anomaly. Over the last thirty years, Supreme Court decisions have once again dismantled Eighth Amendment protections and rendered such words as "cruel" and "inhuman" meaningless when applied to conditions of confinement and treatment during detention. Prisoners' actual pain and suffering have been explained away in a rhetorical haze--with rationalizations, for example, that measure cruelty not by the pain or suffering inflicted, but by the intent of the person who inflicted it. The Story of Cruel and Unusual is a stunningly original work of legal scholarship, and a searing indictment of the U.S. penal system.

American Telecommunications Policy in the Internet Age

Telecommunications policy profoundly affects the economy and our everyday lives. Yet accounts of important telecommunications issues tend to be either superficial (and inaccurate) or mired in jargon and technical esoterica. In Digital Crossroads, Jonathan Nuechterlein and Philip Weiser offer a clear, balanced, and accessible analysis of competition policy issues in the telecommunications industry. After giving a big picture overview of the field, they present sharply reasoned analyses of the major technological, economic, and legal developments confronting communications policymakers in the twenty-first century.

Since the passage of the Telecommunications Act of 1996, when Congress fundamentally reoriented the existing regulatory scheme, no book has cogently explained the intricacies of telecommunications competition policy in the Internet age for general readers, students, and practitioners alike. Digital Crossroads meets this need, focusing on the regulatory dimensions of competition in wireline and wireless telephone service; competition among rival platforms for broadband Internet service and video distribution; and the Internet's transformation of every aspect of the telecommunications industry, particularly through the emergence of "voice over Internet protocol" (VoIP). The authors explain not just the complicated legal issues governing the industry, but also the rapidly changing technological and economic context in which these issues arise. The book includes extensive endnotes and tables that cover relevant court decisions, FCC orders, and academic commentaries; a glossary of acronyms; a statutory addendum containing the most important provisions of federal telecommunications law; and two appendixes with information on more specialized topics. Supplementary materials for students are available at http://spot.colorado.edu/~weiserpj.

Why the Information Economy Collapsed and How It Will Rise Again

While we were waiting for the Internet to make us rich—back when we thought all we had to do was to buy lottery tickets called dotcom shares—we missed the real story of the information economy. That story, says Bruce Abramson in Digital Phoenix, took place at the intersection of technology, law, and economics. It unfolded through Microsoft's manipulation of software markets, through open source projects like Linux, and through the file-sharing adventures that Napster enabled. Linux and Napster in particular exploited newly enabled business models to make information sharing cheap and easy; both systems met strong opposition from entrenched interests intent on preserving their own profits. These scenarios set the stage for the future of the information economy, a future in which each new technology will threaten powerful incumbents—who will, in turn, fight to retard this "dangerous new direction" of progress.

Disentangling the technological, legal, and economic threads of the story, Abramson argues that the key to the entire information economy—understanding the past and preparing for the future—lies in our approach to intellectual property and idea markets. The critical challenge of the information age, he says, is to motivate the creation and dissemination of ideas. After discussing relevant issues in intellectual property and antitrust law, the economics of competition, and artificial intelligence and software engineering, Abramson tells the information economy's formative histories: the Microsoft antitrust trial, the open-source movement, and (in a chapter called "The Computer Ate My Industry") the advent of digital music. Finally, he looks toward the future, examining some ways that intellectual property reform could power economic growth and showing how the information economy will reshape the ways we think about business, employment, society, and public policy—how the information economy, in fact, can make us all rich, as consumers and producers, if not as investors.

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