Virginia Law Review最新文献_第9页

Indeterminate Future Harm in the Context of September 11 911事件背景下的不确定未来危害

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2002-12-01 DOI: 10.2307/1074010

R. Rabin

{"title":"Indeterminate Future Harm in the Context of September 11","authors":"R. Rabin","doi":"10.2307/1074010","DOIUrl":"https://doi.org/10.2307/1074010","url":null,"abstract":"The primary purpose of this paper is to assess how the September 11 Victim Compensation Fund, enacted by Congress within two weeks of the terrorist acts, addresses (and fails to address) the particular subset of prospective injuries that are associated with toxic exposure and possible harm arising in the future. Whatever one makes of the basic design of the scheme for immediate victims and their survivors, which is in fact quite controversial, the consequences for \"futures victims\" are a distinct matter about which Congress appears to have been either inattentive or unconcerned. After providing a general overview of the Fund and the correlative tort action established by the umbrella legislation, the Air Transportation System and Stabilization Act, the paper evaluates the compensation scheme along the lines of four key determinants for assessing no-fault compensation plans: 1) designating a compensable event; 2) setting limits on compensation; 3) deciding whether to retain the tort system; and 4) financing the system. In the course of discussing those determinants, the paper focuses, in particular, on discrete categories of prospective victims, based on the varying circumstances of exposure. Most commonly, claims arising under compensation schemes raise now-familiar issues of causation under conditions of uncertainty. By contrast, under the Fund, basic issues of system design, entirely apart from individual causation inquiries, require close attention. This circumstance, in turn, leads to a final section of the paper commenting briefly on some salient political considerations that offer still another perspective on the action Congress took in the wake of September 11. Rather than ending in the domain of realpolitik, the paper suggests that Congress could (and should) have provided for futures victims as well as those suffering immediate physical harm, assuming that a compensation plan was warranted in the first instance.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"88 1","pages":"1831"},"PeriodicalIF":2.6,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1074010","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68204215","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 2

After the Judgment 判决后

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2002-12-01 DOI: 10.2307/1074009

E. Pryor

{"title":"After the Judgment","authors":"E. Pryor","doi":"10.2307/1074009","DOIUrl":"https://doi.org/10.2307/1074009","url":null,"abstract":"Tort judgments - whether entered after settlement or a trial - have traditionally been viewed as marking the end of tort law’s role in the plaintiff’s life. Yet developments over the past 25 years have rendered this view obsolete. Until several decades ago, tort judgments almost always resulted in a lump sum payment reflecting a jury’s findings or the parties’ assessment of the amount of damages incurred by the time of settlement as well as provable future damages. Aside from minors (for whom monies were deposited into an interest-bearing account until the minor reached adulthood and received the full sum), the non-taxable tort award was the plaintiff’s to spend or invest as he or she chose. Now, however, payment methods other than the lump sum are common for both minors and adults. Legislation in many states allows defendants to request an order for periodic payment. In settlement contexts, parties often make use of structured settlements—a package consisting of a present payment and a structured series of future payments. In addition, settlement trusts are more common now. These and other changes mean that the hand of tort law often extends beyond the judgment and affects the timing of, structure of, and decisionmaking about tort payments. This Article explains this shift and the reasons for it, and identifies and explores some of the most important questions it raises. These questions include the efficiency and justice of mandated and voluntary payout methods in various categories of cases; the proper approach for plaintiffs with diminished (or allegedly diminished) decisionmaking capacity; and the role of the lawyer as to both competent and diminished capacity clients.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"88 1","pages":"1757"},"PeriodicalIF":2.6,"publicationDate":"2002-12-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1074009","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68204202","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 6

The Analytics of Duty: Medical Monitoring and Related Forms of Economic Loss 责任分析:医疗监测与经济损失的相关形式

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2002-12-01 DOI: 10.2307/1074012

Mark A. Geistfeld

引用次数: 0

Liability for Medical Monitoring and the Problem of Limits 医疗监护责任及责任限制问题

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2002-12-01 DOI: 10.2307/1074014

K. Abraham

引用次数: 1

Decoupling Deterrence and Compensation Functions in Mass Tort Class Actions for Future Loss 解耦、威慑与补偿在集体侵权诉讼中的作用

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2002-11-26 DOI: 10.2139/SSRN.354126

D. Rosenberg

{"title":"Decoupling Deterrence and Compensation Functions in Mass Tort Class Actions for Future Loss","authors":"D. Rosenberg","doi":"10.2139/SSRN.354126","DOIUrl":"https://doi.org/10.2139/SSRN.354126","url":null,"abstract":"Mass tort cases involving serious personal injury are generally deemed inappropriate for class action treatment. It is presumed that in these cases adjudicative costs of determining non-common questions to individualize class members' recoveries negate judicial economies from trial of common questions on a class-wide basis. This presumption defies logic, lacks empirical substantiation, and most troubling for a legal system devoted to enhancing individual welfare, takes no account of the adverse tort deterrence and insurance consequences of relegating claims to the standard process of separate actions. Indeed, the presumption seems less the product of analysis than habit - the convention of resolving class actions by \"integrated\" final judgment that cumulates the results of common and non-common question trials. Under this form of judgment, success for the class and its counsel is contingent not only on their collectively winning class-wide trial of the common questions, but also on the extent to which each class member recovers damages in separate trial of the non-common questions. In effect, the integrated judgment holds class action deterrence benefits hostage to the costs and contingencies of individualizing compensation for class members, and in the process thwarts both objectives. This essay proposes to solve this problem by decoupling deterrence from compensation functions of mass tort class action. In particular, decoupling would result in two, separate final class rulings and related fee awards. The first ruling would issue upon class-wide trial of the common questions that determines aggregate liability and damages. This determination is sufficient for deterrence purposes. Because mass torts arise from the systematic risks of mass production processes and goods (products and services), the only questions of relevance to deterrence are common and indeed mostly statistical. The second ruling (assuming the class wins the first) would take the form of an insurance fund judgment that prescribes the terms and conditions for distributing the aggregate damage award (or the commercial insurance coverage that the award purchases) to compensate specified losses as far as practicable and if and when class members incur them. Distributing the fund for maximum insurance benefit eliminates much of the costly individualization. Significantly, even if the costs of individualizing severity of loss and deterrence incentives (e.g. contributory negligence) for insurance purposes preclude or reduce compensation for some fraction of class members (smaller than in the more costly and risky separate action process), decoupling fully achieves deterrence goals and thus makes everyone better off.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"88 1","pages":"1871"},"PeriodicalIF":2.6,"publicationDate":"2002-11-26","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68605281","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 7

Targeting Ecstasy Use at Raves 在狂欢派对上使用摇头丸

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2002-11-01 DOI: 10.2307/1073992

Michael H. Dore

引用次数: 0

Quasi-Affirmative Rights In Constitutional Criminal Procedure 宪法刑事诉讼中的准肯定性权利

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2002-10-28 DOI: 10.2307/1073984

D. Sklansky

{"title":"Quasi-Affirmative Rights In Constitutional Criminal Procedure","authors":"D. Sklansky","doi":"10.2307/1073984","DOIUrl":"https://doi.org/10.2307/1073984","url":null,"abstract":"Constitutional criminal procedure is often seen as starkly libertarian, consisting exclusively or almost exclusively of negative rather than positive rights. But constitutional criminal procedure actually is replete with rights best understood as \"quasi-affirmative\" - affirmative conditions placed on actions that government cannot realistically be expected to forego. Although the traditional objections to affirmative rights also apply to quasi-affirmative rights, they apply less forcefully. This is particularly true in constitutional criminal procedure, where the pervasiveness of quasi-affirmative rights, the special severity of criminal penalties, and the reliance on evidentiary exclusion as a remedial device all make quasi-affirmative rights less objectionable than they may be elsewhere. Nonetheless, courts often fail to distinguish quasi-affirmative rights from affirmative rights. They appear to shy away from doctrinal paths in constitutional criminal procedure that seem to place any kind of affirmative obligation on government, even when the obligation in question is actually only quasi-affirmative. The result has been the underdevelopment of constitutional criminal procedure overall. This article presents four examples of quasi-affirmative rights in constitutional criminal procedure that courts have failed to develop, in each case largely because the right in question seems affirmative rather than negative. The first example involves the government's obligation to make provision for reasonably expeditious processing of warrant applications before claiming that \"exigent circumstances\" excused the failure to obtain a warrant in a particular case. The second concerns the government's duty to tape-record custodial interrogations of criminal suspects. The third has to do with the responsibility of police departments to promulgate rules reasonably constraining the discretion of individual officers in deciding whether and how to carry out searches and seizures. The fourth pertains to the obligation of the government to provide court-appointed counsel with some minimally adequate level of financial support. In each of these instances, judicial aversion to the proposed new right appears to have rested in significant part on an exaggerated sense of the jurisprudential difficulties it would raise. Recognizing the distinction between quasi-affirmative and affirmative rights may therefore make courts less reluctant to develop new quasi-affirmative rights in constitutional criminal procedure. It may also help courts to develop those rights in ways that minimize their dangers. The dangers are likely to be most effectively minimized by judicial strategies designed to promote ongoing dialog between the judiciary on the one hand and the political branches on the other. Two classes of such strategies seem particularly promising, and in fact are already in use in criminal procedure. The first consists of announcing rules that are in some sense \"reversible\" the ","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"88 1","pages":"1229"},"PeriodicalIF":2.6,"publicationDate":"2002-10-28","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"https://sci-hub-pdf.com/10.2307/1073984","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68203455","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 7

Environmental Crimes, Prosecutorial Discretion, and the Civil/Criminal Line 环境犯罪，检控裁量权，和民事/刑事线

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2002-10-01 DOI: 10.2307/1073986

D. A. Barker

引用次数: 8

Uncontrollable Urges and Irrational People 无法控制的冲动和非理性的人

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2002-09-01 DOI: 10.2139/SSRN.293368

S. Morse

{"title":"Uncontrollable Urges and Irrational People","authors":"S. Morse","doi":"10.2139/SSRN.293368","DOIUrl":"https://doi.org/10.2139/SSRN.293368","url":null,"abstract":"\"Uncontrollable Urges and Irrational People\" addresses the fundamental issue the Supreme Court will decide this term in In re Crane: the constitutionally acceptable standard for indefinite involuntary civil commitment of mentally abnormal sexual predators. It makes four principal arguments. First, it claims that genuine non-responsibility should be a necessary, limiting precondition for indefinite involuntary commitment, and that the \"loss of control\" language in the Court's opinion in Hendricks should be understood as a proxy for non-responsibility generally. Second, it argues that loss of control standards, as criteria for non-responsibility, are unworkable. The essay next turns to \"causal link\" standards of the type Kansas proposes in Crane, which permit a potentially violent predator to be confined if a mental abnormality predisposes the person to commit future acts of violence. It claims that causal link standards are over-inclusive, and, properly understood, are not non-responsibility standards at all. Causal link standards are therefore an unjustifiable threat to liberty. Finally, the essay proposes that a lack of capacity for rationality is a genuine and workable non-responsibility standard that could properly justify and limit indefinite involuntary commitment.","PeriodicalId":47840,"journal":{"name":"Virginia Law Review","volume":"88 1","pages":"1025"},"PeriodicalIF":2.6,"publicationDate":"2002-09-01","publicationTypes":"Journal Article","fieldsOfStudy":null,"isOpenAccess":false,"openAccessPdf":"","citationCount":null,"resultStr":null,"platform":"Semanticscholar","paperid":"68437219","PeriodicalName":null,"FirstCategoryId":null,"ListUrlMain":null,"RegionNum":2,"RegionCategory":"社会学","ArticlePicture":[],"TitleCN":null,"AbstractTextCN":null,"PMCID":"","EPubDate":null,"PubModel":null,"JCR":null,"JCRName":null,"Score":null,"Total":0}

引用次数: 44

Substance and Method in Conceptual Jurisprudence and Legal Theory 概念法学与法律理论中的实质与方法

IF 2.6 2区社会学

Virginia Law Review Pub Date : 2002-09-01 DOI: 10.2307/1073998

K. Himma

引用次数: 16