The overriding theme of the conference honoring Bob Cooter and his work is the question whether law and policy can change people’s preferences. The conventional “law and economics” answer is “no.” ...People have preferences that are fixed. What changes in law and policy do is to change how people behave by altering the costs and benefits people face in pursuit of their preferences. Put simply, the assumption of the “law and economics” model is that people respond to financial incentives by changing how they act, not what they want. So, to take a simple example, imagine two people at the same starting point, both wanting to drive separately to visit a mutual friend. Their preference to get there promptly and safely is common to both of them, but how they act in pursuit of that goal may well differ. Moreover, government can alter how they drive to their friend’s by making changes such as putting in a freeway, or adding a new lane to the road, or installing lots of new traffic signals or stop signs along one route. The two people may have driven different routes previously, and they may alter their driving strategy in response to the policy changes government has adopted and may still decide that different routes are better for them. But they do not change their desire to see their friend in a prompt and safe manner. In this Article I offer a counterexample — an instance in which changes in law and policy can not only alter the behavior of some with fixed preferences, but also can impact the preferences of others. My example is about changes in society that can alter parenting style (of those parents with a fixed preference to have their children succeed) and can also change the underlying preferences that those children have as to how their lives should play out.
When a radiation accident has occurred that leads to radioactive material being imparted to a wound, this is treated as an internal contamination scenario. It is common for the material to transport ...throughout the body based upon biokinetics of the material in the body. While standard internal dosimetry approaches can be used to estimate committed effective dose from the insult, some material may get fixed for longer periods of time at the wound location, even after medical procedures such as decontamination and debridement have been applied. In this case, the radioactive material becomes a local dose contributor. This research was to generate local dose coefficients for radionuclide-contaminated wounds to supplement committed effective dose coefficients. These dose coefficients can be used to calculate activity limits at the wound site that could lead to a clinically significant dose. This is useful for emergency response to assist in decisions on medical treatment, including decorporation therapy. Wound models were created for injections, lacerations, abrasions, and burns, and the MCNP radiation transport code was used to simulate the dose to tissue considering 38 radionuclides. Biokinetic models accounted for biological removal of the radionuclides from the wound site. It was found that radionuclides that are not retained well at the wound site are likely of little concern locally, but for highly retained radionuclides, estimated local doses may require further investigation by medical and health physics personnel.
Purpose
Breast cancer patients aged 65+ (“older”) vary in frailty status. We tested whether a deficits accumulation frailty index predicted long-term mortality.
Methods
Older patients (
n
= 1280) ...with non-metastatic, invasive breast cancer were recruited from 78 Alliance sites from 2004 to 2011, with follow-up to 2015. Frailty categories (robust, pre-frail, and frail) were based on 35 baseline illness and function items. Cox proportional hazards and competing risk models were used to calculate all-cause and breast cancer-specific mortality for up to 7 years, respectively. Potential covariates included demographic, psychosocial, and clinical factors, diagnosis year, and care setting.
Results
Patients were 65–91 years old. Most (76.6%) were robust; 18.3% were pre-frail, and 5.1% frail. Robust patients tended to receive more chemotherapy ± hormonal therapy (vs. hormonal) than pre-frail or frail patients (45% vs. 37 and 36%,
p
= 0.06), and had the highest adherence to hormonal therapy. The adjusted hazard ratios for all-cause mortality (
n
= 209 deaths) were 1.7 (95% CI 1.2–2.4) and 2.4 (95% CI 1.5–4.0) for pre-frail and frail versus robust women, respectively, with an absolute mortality difference of 23.5%. The adjusted hazard of breast cancer death (
n
−99) was 3.1 (95% CI 1.6–5.8) times higher for frail versus robust patients (absolute difference of 14%). Treatment differences did not account for the relationships between frailty and mortality.
Conclusions
Most older breast cancer patients are robust and could consider chemotherapy where otherwise indicated. Patients who are frail or pre-frail have elevated long-term all-cause and breast cancer mortality. Frailty indices could be useful for treatment decision-making and care planning with older patients.
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EMUNI, FIS, FZAB, GEOZS, GIS, IJS, IMTLJ, KILJ, KISLJ, MFDPS, NLZOH, NUK, OBVAL, OILJ, PNG, SAZU, SBCE, SBJE, SBMB, SBNM, UKNU, UL, UM, UPUK, VKSCE, ZAGLJ
Limited inalienability rules Porat, Ariel; Sugarman, Stephen
The Georgetown law journal,
03/2019, Volume:
107, Issue:
3
Journal Article
Peer reviewed
Most people's entitlements are protected by a property rule, which means that their holders can sell them for a price. But some important entitlements are protected by an inalienability rule, and ...hence cannot be sold under any circumstances. For example, people cannot sell their organs. In most jurisdictions, women cannot be surrogate mothers for a fee (only for reimbursement of costs). People cannot sell their right not to be exposed to highly life-threatening conditions. Most constitutional rights are not transferrable. People cannot reassign their legal entitlements to social benefits provided by the government. Tort victims in many jurisdictions cannot sell their rights to sue. Finally, neither individuals nor governments can sell some types of cultural property to foreigners or to foreign governments. In this Article, we propose and develop an intermediate rule for protecting entitlements a middle ground between property and inalienability rules that we call the "Limited Inalienability Rule" (LIR). Under this rule, the holder of the entitlement is free to transfer her entitlement but still possesses an inalienable right to revoke the transfer (or the agreement to transfer) at a later stage, with no penalty. We show that this rule currently exists with respect to a few entitlements, and we suggest that it be employed in additional areas of law. We demonstrate that on many occasions, an LIR serves as a sensible compromise between property and inalienability rules, and can be justified on efficiency and justice grounds., Most people’s entitlements are protected by a property rule, which means that their holders can sell them for a price. But some important entitlements are protected by an inalienability rule, and hence cannot be sold under any circumstances. For example, people cannot sell their organs. In most jurisdictions, women cannot be surrogate mothers for a fee (only for reimbursement of costs). People cannot sell their right not to be exposed to highly life-threatening conditions. Most constitutional rights are not transferrable. People cannot reassign their legal entitlements to social benefits provided by the government. Tort victims in many jurisdictions cannot sell their rights to sue. Finally, neither individuals nor governments can sell some types of cultural property to foreigners or to foreign governments. In this Article, we propose and develop an intermediate rule for protecting entitlements—a middle ground between property and inalienability rules—that we call the “Limited Inalienability Rule” (LIR). Under this rule, the holder of the entitlement is free to transfer her entitlement but still possesses an inalienable right to revoke the transfer (or the agreement to transfer) at a later stage, with no penalty. We show that this rule currently exists with respect to a few entitlements, and we suggest that it be employed in additional areas of law. We demonstrate that on many occasions, an LIR serves as a sensible compromise between property and inalienability rules, and can be justified on efficiency and justice grounds.
Internalization of radionuclides occurs not only by inhalation, ingestion, parenteral injection (i.e., administration of radioactive material for a medical purpose), and direct transdermal ...absorption, but also by contaminated wounds. In June 2010, a glove-box operator at the U.S. Department of Energy's Savannah River Site sustained a puncture wound while venting canisters containing legacy materials contaminated with Pu. To indicate the canisters had been vented, a flag was inserted into the vent hole. The shaft of the flag penetrated the protective gloves worn by the operator. Initial monitoring performed with a zinc-sulfide alpha detector indicated 300 dpm at the wound site. After being cleared by radiological controls personnel, the patient was taken to the site medical facility where decontamination was attempted and diethylenetriaminepentaacetic acid (DTPA) was administered intravenously within 1.5 h of the incident. The patient was then taken to the Savannah River Site In Vivo Counting Facility where the wound was counted with a Canberra GL 2820 high-purity germanium detector, capable of quantifying contamination by detecting low-energy x rays and gamma rays. In addition to the classic 13, 17, and 20 keV photons associated with Pu, the low-yield (0.04%) 43.5 keV peak was also detected. This indicated a level of wound contamination orders of magnitude above the initial estimate of 300 dpm detected with handheld instrumentation. Trace quantities of Am were also identified via the 59.5 keV peak. A 24 h urine sample collection was begun on day 1 and continued at varying intervals for over a year. The patient underwent a punch biopsy at 3 h postincident (14,000 dpm removed) and excisional biopsies on days 1 and 9 (removal of an additional 3,200 dpm and 3,800 dpm, respectively). The initial post-DTPA urine sample analysis report indicated excretion in excess of 24,000 dpm Pu. Wound mapping was performed in an effort to determine migration from the wound site and indicated minimum local migration. In vivo counts were performed on the liver, axillary lymph nodes, supratrochlear lymph nodes, and skeleton to assess uptake and did not indicate measurable activity. Seventy-one total doses of DTPA were administered at varying frequencies for 317 d post intake. After allowing 100 d for removal of DTPA from the body, five 24 h urine samples were collected and analyzed for dose assessment by using the wound model described in National Council on Radiation Protection and Measurements Report No. 156. The total effective dose averted via physical removal of the contaminant and DTPA administration exceeded 1 Sv, demonstrating that rapid recognition of incident magnitude and prompt medical intervention are critical for dose aversion.
Re-imagining the Dignitary Torts Sugarman, Stephen D.; Boucher, Caitlin
Journal of tort law,
03/2021, Volume:
14, Issue:
1
Journal Article
Peer reviewed
In the article, we make three claims. First, we argue that a large number of what are traditionally seen as separate torts are, at their core, all about affronts to the dignity of the victim. These ...include offensive battery, assault, false imprisonment, intentional infliction of emotional distress, defamation, invasion of privacy, some nuisances, and abuse of process (malicious prosecution). These torts do not involve direct physical harm but, rather, emotional distress from having your dignity attacked. Second, we argue that as these torts have developed inside of their own doctrinal silos, there are important differences among the laws governing them. Third, we argue that these differences are not justified and that it would be better to create a consistent tort approach to dignitary harm: tort recovery should lie for injuries resulting from wrongful conduct that is highly offensive and causes more than minor harm. This, it turns out, is the standard that currently applies in a majority of jurisdictions for privacy invasions. If more widely adopted, this standard would, for example, far more easily allow recovery for nasty verbal sexual (or other) harassment, since intentional infliction of emotional distress currently requires a much stronger showing. At the same time, it would preclude recovery for minor physical touchings that technically now qualify as offensive battery. We think this achieves the balance much better.
Do childhood vaccines cause autism? More than 5000 families have filed claims with the federal Vaccine Injury Compensation Program. Stephen Sugarman discusses the autism cases.
Do childhood vaccines ...cause autism? This scientific question has now become a legal one — perhaps inevitable in our society. Some families with autistic children are pursuing legal channels in an effort to prove that vaccines are responsible for their children's condition. Most of them allege that the cause is the mercury-containing preservative thimerosal, which was formerly used in many vaccines in the United States and elsewhere. Others argue that the culprit is the measles, mumps, and rubella (MMR) vaccine itself or perhaps the vaccine in combination with thimerosal.
Although most experts have concluded that there is no proof of . . .
Restating the Tort of Battery Sugarman, Stephen D.
Journal of tort law,
09/2018, Volume:
10, Issue:
2
Journal Article
Peer reviewed
This article offers a bold proposal: eliminate the intentional tort of battery and merge cases of both the negligent and intentional imposition of physical harm into a single new tort. The advantages ...of a single tort of wrongfully causing physical harm to persons are many. It would (a) do away with complex and unneeded doctrinal details now contained within battery law, (b) pave the way to a sensible regime of comparative fault for all such physical injuries, (c) properly shift the legal focus away from the plaintiff’s conduct and onto the defendant’s, (d) eliminate the Restatement’s need to supplement battery law with yet a separate intentional physical harm tort when an injury is intentionally caused but without the contact or other requirements of battery, and (e) force courts to decide various collateral issues (like whether punitive damages are available or whether liability insurance coverage is applicable) on their own terms and not by linking them to whether this case involves a battery (and then making exceptions, since it turns out that battery is not a reliable basis for deciding those collateral matters). More broadly, the new tort is intellectually more insightful as it anchors acts that now count as batteries more in their wrongfulness than in their intentionality as battery law does today.
This article argues that it is unconstitutional for state charter school programs to preclude faith-based schools from obtaining charters. The first section describes the “school choice” movement of ...the past fifty years, situating charter schools in that movement. The current state of play of school choice is documented and the roles of charter schools, private schools (primarily faith-based schools), and public school choice options are elaborated. The second section argues that based on the current state of the law it should not be unconstitutional, under the First Amendment's Establishment Clause, for states to elect to make faith-based schools eligible for charters, and, therefore, the current practice of formal discrimination on the basis of religion against families and school founders who want faith-based charter schools should be deemed unconstitutional by the US Supreme Court. Put differently, this is not the sort of issue in which the “play in the joints” between the Free Exercise and Establishment Clauses should apply so as to give states the option of restricting charter schools to secular schools.
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Torts and Guns Sugarman, Stephen D.
Journal of tort law,
8/2017, Volume:
10, Issue:
1
Journal Article
Peer reviewed
When Hillary Clinton and Bernie Sanders squabbled during their 2015-16 election campaigns over the federal Protection of Lawful Commerce in Arms Act (PLCAA), they were talking past each other, ...misleading their listeners, and failing to understand what this statute pre-empting some state tort claims against the gun industry was actually about. Many critics of PLCAA argue that gun makers and sellers should be liable just like those in the auto, pharmaceutical drug, and tobacco industries. Yet, it is very rare for defendants in those industries to be successfully sued in tort for the sort of conduct that gun control advocates would like to hold the gun industry liable. In contrast to the hopes and fears of Clinton and Sanders, repealing PLCAA would not likely result in a burst of successful lawsuits, although some might be winners. Perhaps potential and actual tort litigation against this industry is better understood as part of a longer term battle over public opinion and eventual legislative reform.
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