Showing papers in "Law and contemporary problems in 1986"

The frequency and severity of medical malpractice claims: new evidence.

Abstract: Physicians have been liable for medical malpractice since the eighteenth century in the United States, but malpractice claims were rare until recently. In the late 1960's the frequency of claims per physician and claim severity (size of award per paid claim) began to increase at unprecedented rates, culminating in the medical malpractice insurance "crisis" of the mid-1970's. In response to this crisis, legislatures in almost every state enacted tort reforms intended to curb the rise in claims, in addition to other changes designed to assure the availability of malpractice insurance.' Between 1975 and 1978, claim frequency per physician slowed or even decreased in many states, but since 1978, claim frequency has resumed an upward trend. The St. Paul Fire and Marine Insurance Company (The St. Paul), which has been the leading writer of malpractice insurance for many years, reports a fifty-five percent increase in claim frequency since 1980from 10.5 claims per 100 physicians in 1980 to 16.3 in 1984.2 Claim severity increased faster than the rate of inflation throughout the 1970's, and this trend appears to have continued into the 1980's. The St. Paul reports that paid claim severity increased ninety-five percent during the five year period 1979-1983, from $27,408 in 1979 to $53,482 in 1983.3 The average malpractice jury award is reported to have risen from $404,726 in 1980 to

Liability and Individualized Evidence

Abstract: Cases like Smith v. Rapid Transit, Inc. present a problem to students of tort law. Here is a typical hypothetical case-I will call it Smith v. Red Cab-which presents the problem more cleanly than the actual case does. Mrs. Smith was driving home late one night. A taxi came towards her, weaving wildly from side to side across the road. She had to swerve to avoid it; her swerve took her into a parked car; in the crash, she suffered two broken legs. Mrs. Smith therefore sued Red Cab Company. Her evidence is as follows: she could see that it was a cab which caused her accident by weaving wildly across the road, and there are only two cab companies in town, Red Cab (all of whose cabs are red) and Green Cab (all of whose cabs are green), and of the cabs in town that night, six out of ten were operated by Red Cab. Why is that the only evidence she can produce against Red Cab? She says that although she could see that it was a cab which came at her, she could not see its color, and as it was late, there were no other witnesses to the accident-other than the driver himself, of course, but he has not come forward to confess. If we believe Mrs. Smith's story, and are aware of no further facts that bear on the case, then we shall think it .6 probable that her accident was caused by a cab operated by Red Cab. I think it pays to spell this reasoning out; what follows is one way of doing so. If we believe Mrs. Smith's story, then we believe that a cab, indeed exactly one cab, caused the accident, so that there is such a thing as the cab which caused the accident; and we believe that it was a cab in town that night. Thus we believe:

Information on malpractice: a review of empirical research on major policy issues.

Abstract: Just as it did in the mid-1970's, the medical malpractice system is currently receiving a great deal of attention. Soaring premiums for some physicians, high awards for some injured patients, and the potentially high costs of defensive medicine have led to a number of proposals to reform the present system. The preceding papers in this journal indicate the level of activity in this area. But what really is known about the medical malpractice system, what it costs, how well it compensates for injuries, its impact on the quality of care, and the likely effects of proposed modifications? This article reviews major empirical studies dealing with medical malpractice that have attempted to answer some or all of such questions. The topic areas used to organize this review are as follows: (a) tracking premiums, claims, and awards; (b) injuries, claims, and resolutions; (c) objectives of the tort system; (d) legal reforms; and (e) malpractice and the health care system. The article focuses on attributes of the medical malpractice system and its relation to medical care. Studies of the insurance industry are not explicitly addressed unless they focus directly on the medical malpractice system. Thus, information on topics such as the appropriateness of insurance rating categories, accuracy of premium levels, and the effects of competition and regulation have been omitted. Even a casual follower of malpractice policy debates can see that the amount of published and unpublished information is voluminous; however, very little of that information consists of systematic empirical studies. Indeed, information on malpractice can be organized into five categories, with varying degrees of quantitative content and validity. Table 1 describes how sources range from the most common type, largely anecdotal in content, to the rarest, well-designed empirical studies of developments, behavior, and trends.

Distinguishing Justifications From Excuses

Abstract: Ann swings her arm and injures Ben. She might make a claim of justification that, despite initial appearances, her action was desirable or proper, or she might make a claim of excuse that she does not bear full responsibility for injuring Ben. In the legal context, a defendant who successfully establishes the legal analogue of a moral justification or excuse is typically relieved of liability. In modern American criminal law the terms "justification" and "excuse" only refer to the second kind of explanation—that is, they concede the presence of the basic elements but deny liability on independent grounds. Partial exonerations present a more difficult decision about terminology. It is easy to determine how to treat partial excuses, which diminish responsibility. The major problems for the law are factual misperceptions, the coalescence of elements of justification and excuse, and varying standards of moral appropriateness.

Medical malpractice on trial: quality of care is the important standard.

Abstract: One should judge today's tort-and-insurance system for medical malpractice by traditional tort standards: would a reasonable person, asked for informed consent, choose this particular system as a means of policing medical care and paying for medical injuries? The short answer is "probably not," but a full analysis must weigh the system's costs against its benefits, then compare the results against those of feasible alternatives. In this calculus, quality medical care is the most important element. Significant costs of today's medical malpractice system include relatively objective fiscal elements like private liability insurance premiums (including self-insurance) that cover awards for economic loss and for pain and suffering, as well as public spending for courtrooms, judges, and juries. Highly subjective and intangible costs also need to be counted, such as the effects on medical practice and the availability of care, the impact of delayed compensation or rehabilitation on injured patients, time costs of plaintiffs and defendants, and damage to professional reputations and patient trust. Traditionally, benefits of the tort system are said to take two formscompensation and deterrence. Claimant-plaintiffs injured by the substandard behavior of a defendant-insured are to be "made whole" for the

Private reform of tort-law dogma: market opportunities and legal obstacles.

Abstract: At this point, the focus of the symposium shifts away from possible legislative reforms of malpractice law in order to consider whether some relief from malpractice problems might be obtainable through private action-that is, through private contracts altering the responsibilities of health care providers and the legal rights of patients.1 The first thesis to be presented here, in opening this subject, is that the idea of private reform in the area of medical malpractice squares nicely both with recent developments in national health policy and with recent changes in the health care industry itself. It will also be contended that the legal system, to the extent that it is unreceptive to contractual variations of its rules governing medical accidents, is out of touch with recent developments and needs to have its premises reexamined. The observations here support the view that tort law must recede from a dogmatic regulatory role in which it alone specifies rights arising out of the provider/patient relationship and should recognize that private agreements altering its prescriptions may benefit everyone appropriately concernedeveryone, that is, except malpractice lawyers. An examination of the implications of recent health sector developments for malpractice reform should be helpful to several audiences. Those who focus their attention primarily on liability issues are apt to be only generally aware of what is happening in health policy and in the health care marketplace

Policy Lessons From Recent Gun Control Research

Abstract: Research on persons who tend to use guns to injure others suggests that gun control laws should restrict gun possession among persons with prior records of violence rather than among the general public. To avoid inadvertently encouraging the substitution of deadlier weapons, gun control should be applied equally to all types of firearms, not just to handguns or 'Saturday Night Specials.' Beyond amending the Gun Control Act of 1968 to make evasion of State gun control laws more difficult, additional Federal legislation is unnecessary, given the varying need for gun control among the States. Since research shows that low priority is given to the enforcement of gun laws, any additional gun control laws should rely primarily on voluntary compliance. Criminals obtain their guns primarily through private, quasi-legal transfers from private parties rather than from licensed dealers, black market enterprises, or through theft. Such transfers might be minimized by establishing civil liability for damages resulting from an illegal gun transfer to an ineligible recipient. Language: en

Designing a no-fault alternative.

Abstract: A no-fault compensation scheme should rank at the very top of a list of long-term solutions to the perceived crisis in medical malpractice. The form of no-fault system most likely to be adopted would be one providing automatic compensation, not for all iatrogenic injuries, but for a limited set of "designated compensable events." Such a compensation system would be closely integrated with the day-to-day activities of health care providersindividual practitioners, institutions, and health maintenance organizations (HMO's)-and would link compensation closely to the outcomes of medical intervention. In addition to providing quick and equitable compensation for a wide range of medically caused injuries, a properly designed system would supply strong incentives for modifying provider behavior to improve the quality of health care.' Although a no-fault scheme might be embodied in legislation, this idea has not yet been embraced by public policy makers. Nevertheless, it remains possible (subject to concerns about the enforceability of agreements modifying tort rights) for a no-fault scheme to be adopted privately in provider/patient contracts backed by a form of casualty insurance. In the current competitive environment of the health care industry, the availability of the voluntary no-fault alternative would greatly expand the freedom of choice of both providers and consumers of health care services.2

Justification and Excuse in the Program of the Criminal Law

Abstract: ed from the principles of responsibility and nonresponsibility, opens the way to playing with words like warranted and to the prejudgments that such words entail. I propose to start the analysis back further, beginning with the purposes of exculpation, because it is on that basis that we should allocate conduct to the categories of justification and excuse. Purpose is criterial in this respect; characterizations of conduct without regard to purpose are not. My method is to use paradigm instances of justification and excuse to work back to purposes. With the aid of historical materials, it is not a particularly difficult task.

Rethinking the allocation of medical malpractice risks between patients and providers.

Abstract: A distinctive feature of medical malpractice law is its acceptance of medical custom as the dispositive legal standard of care. Outside the field of medical malpractice, long established legal doctrine accords limited weight to custom in defining the general standard of care in negligence cases.' In medical practice, by contrast, the legal standard of due care is virtually defined by the customary skills and practices of the profession. A showing of subconformity to custom here ordinarily yields liability, while conformity ordinarily forecloses it; as a corollary, the metes and bounds of custom are required to be established by medical experts qualified to speak to the particular skills or practice in question.2 As there are always exceptions to the general rule, so also there are exceptions to the general exception: liability may be established without expert testimony or independently of professional custom in cases where negligence is obvious to the lay observer or where medical judgment is not implicated.3 The justification for treating malpractice cases differently from other accident cases is by no means obvious or simple. Posner has suggested that a distinction might rest on the notion that custom in malpractice cases was used essentially as evidence of the parties' contractual expectations.4 There is

Neo-no-fault remedies for medical injuries: coordinated statutory and contractual alternatives.

Abstract: Suits to recover for personal injuries resulting from medical malpractice can be among the most unpredictable and most complex to litigate. Because provider fault is frequently difficult to measure-even (and sometimes especially) with the assistance of the parties' alleged (and opposing) expertsa lay jury is apt to be influenced more by its subjective and emotional reaction to the injured patient's plight than by the appropriateness of the defendant's conduct. Thus, lengthy and costly litigation can yield unpredictable results, and this unpredictability raises the costs of claims evaluation and often makes settlements harder to reach. Perceptions of the system as a game of chance rather than as a sound mechanism for catching negligent behavior may undercut the system's value in raising professional standards and deterring injuries.' If providers of health care believe that the legal system lacks the capacity to be reasonable and may penalize even the appearance of negligence, they may err in the direction of practicing inefficient "defensive medicine" by spending large amounts to make it appear that nothing was spared in the plaintiff's case. The system's haphazardness also diminishes its value as a protection for injured patients. One seriously injured party may recover nothing at all or far less than fair compensation, while another receives an award far in excess of his actual loss. Inconsistency is enhanced by allowing juries to award damages for such noneconomic losses as pain and suffering and loss of consortium. Because monetary valuation of such nonmonetary losses is inherently irrational, plaintiffs are encouraged to play upon the jury's sympathy, further distracting attention from the issue of provider fault. The cost of the tort system is also increased, without increasing its value as a

What the Framers Intended: A Linguistic Analysis of the Right to "Bear Arms"

Abstract: Copyright (c) 1986 by Law and Contemporary Problems. J.D., Georgetown University Law Center, 1978; Ph.D. (Philosophy), Florida State University, 1972. A practicing attorney with offices in Fairfax, Virginia, the author is a member of the bars of Virginia, the District of Columbia, and various federal courts. 1 R. FROTHINGHAM, HISTORY OF THE SIEGE OF BOSTON 95 (6th ed. 1903). 2 The Declaration, passed on July 6, 1775, is reprinted, among other places, in Connecticut Courant, July 17, 1775, at 2 (quote taken from col. 3). 3 Id. at 4, col. 1. 4 Kates, Handgun prohibition and the original meaning of the Second Amendment, 82 MICH. L. REV. 204, 267 (1983). [Copyright © 1986 Law & Contemporary Problems. Originally published as 49 LAW & CONTEMP. PROBS. 151-162 (1986). For educational use only. The printed edition remains canonical. For citational use please obtain a back issue from William S. Hein & Co., 1285 Main Street, Buffalo, New York 14209; 716-882-2600 or 800-828-7571. Dr. Halbrook is the author of THAT EVERY MAN BE ARMED: THE EVOLUTION OF A CONSTITUTIONAL RIGHT which may be obtained from www.amazon.com.]

The Use and Abuse of Sentence Enhancement for Firearms Offenses in California

Abstract: Over at least the past quarter century there has been considerable debate about the "gun problem" in the United States. Proposals up to and including banning bullets and confiscating guns have been suggested. Policies directly and indirectly affecting legitimate gun owners almost always meet stiff opposition. In part, this opposition results from the tenacious and tightly knit "gun culture."' Members of this culture are steeped in the folkways and mores of sporting gun use. They bridle at any attempt to blame them for crime or restrict them in what they see as responsible behavior on their part. Similarly, those who own guns for protection want crime levels enormously reduced before they surrender their own guns. Additionally, given the large number of privately owned guns in the United States today,2 the technical and legal impediments to effective gun prohibition may be insurmountable. One policy, however, typically receives support from both proand anticontrol forces: Individuals committing crimes with guns should receive harsher punishments than those who do not use firearms.3 As Colin Loftin and David McDowall point out:

The Armed Citizen in the Early Republic

Abstract: Over the past quarter century concerns about the private possession and use of firearms in the United States have greatly intensified. Indeed, citizens with alternative views of "what America is and ought to be" seem to be waging a great American gun war.' This "war," whose operations range from polite public forums to tragic confrontations between individual citizens and the police, finds both sides arrayed behind differing interpretations of the second amendment. Citizens anxious to protect the individual's right to possess firearms stress the "right to bear arms" portion of the amendment. Those concerned with collective rights and communal responsibilities, in contrast, emphasize the "well regulated Militia" phrase in their attempt to gain restrictive gun legislation. Each group rests its case upon an appeal to history. In fact, both sides frequently draw upon the same historical data to support opposing views.2 Unfortunately, in their efforts to promote disparate views, these polemicists have obscured the historical context within which the second amendment originated.

Husband-Wife Homicide: An Essay From a Family Law Perspective

Abstract: Homicide traditionally has been a matter between family, acquaintances, and friends.' This fact is not particularly surprising, given the reasonable expectation that one would have more reason to kill an acquaintance than a stranger. It would seem to follow that spouses and other intimates would have the most reason of all to kill each other. Yet we recoil from the very idea, clinging to the belief that intimate relationships are characterized by tenderness and love. That they are not always so characterized is evident in the fact of spousal2 violence and homicide. Most homicides are committed with firearms,3 and these weapons also play a role in the more specialized group of homicides that occur between spouses. One goal of all gun control proposals is to reduce the overall number of homicides by reducing the number of homicides committed with firearms.4 A particularly poignant subissue, however, is how to keep people from killing those they live with and (supposedly) love. This article looks at gun control issues from the viewpoint of family law and comments on gun control in the context of husband-wife homicide. In the process, the article also reviews what empiricists have concluded about these homicides and points out areas in which further inquiry would be fruitful. Much of the gun control literature consists of recurring debate on a group of propositions that are relevant to all killings between friends and relatives. Indeed, debate on these propositions is much of the gun control literature. Two of these propositions are particularly interesting to a family law specialist, namely:

Medical malpractice and the contract/tort boundary.

Abstract: No British observer could hope to penetrate in full the complexities of American health-care provision and its relation to the medical malpractice problem; whatever the deficiencies of the British National Health Service,' its financial and administrative structure is simplicity itself compared to that operating in the United States, and the chief characteristic of the British malpractice problem is that there is no problem2 I take it, therefore, that my function as an English legal scholar in this symposium is not to add my own uninformed comments to the already superabundant literature on the American malpractice problem and how to reform the system, but rather to provide a detached overview of the major new American reform proposal under discussion This proposal-to shift the control of much of the physician/patient relationship3 from tort to contract-raises some broad issues about purposes and methodology which are addressed in this article The article begins by asking some very general questions about the nature of the distinction between contract and tort; it then asks whether the preference being expressed by many participants in this symposium for contract over tort4 is merely a preference for a legal tool, a legal methodology, designed to achieve a desired result, or whether this preference does in fact derive from any essential distinctions between contract and tort, irrespective of outcomes The article concludes by asking why some American reformers think that private contractual means are a better way to change malpractice rules and

Criminal Liability for Failures to Act

Abstract: In Anglo-American law, the failure to act provides a ground for criminal sanctions only where there is a pre-existing legal duty to act.' This rule is no innocent truism, for it encompasses those cases in which the failure to act consists of a failure to respond to urgent need. Easily rendered assistance to a drowning or otherwise imperilled child is not required unless the nonrescuer stands in some legally recognized relationship to the child, and the relationship is deemed to imply or mandate a welfare duty to that child. Over the years, the extent and terms of that legally recognized relationship have been broadened. The duty to render easy aid which had its roots in common law duties (in particular, those of a parent toward his dependent children), was gradually extended to contractually based relationships (such as those between a master and his apprentice), and later widened to encompass certain relationships based on informal \"undertakings.\" But the result still falls far short of the rule in most European legal systems, namely, a requirement that a

A consumer perspective on medical malpractice.

Abstract: In 1975, and now again in 1985, there has arisen a public perception of a "malpractice crisis."' The crisis, then and now, principally troubles physicians, who believe that liability insurance premiums are too high. A crisis seen through the eyes of doctors and measured in premium dollars naturally generates responses evaluated in terms of effect on premiums. The needs of patients and consumers never even enter the debate. Many Americans confront enormous difficulty obtaining affordable medical care of decent quality. This article describes these main consumer problems, traces the complex relationships between them and legal actions for medical malpractice, and briefly critiques current proposals for malpractice reform. The thesis of the article is that even in the best of circumstances legal claims for medical malpractice seldom provide effective

Altering the applicable standard of care.

Abstract: Identifying the essential characteristics that distinguish a profession from other service occupations is a common exercise Perhaps a better way to judge the degree of professionalism, however, is with reference to the ease or difficulty of precisely specifying a provider's performance obligations in advance of the provision of services For most medical services, the range of possible exigencies is so great that no imaginable contract or regulation could explicitly state the physician's duty under all of them Efficiency in the delivery of such services therefore requires some departure from a pure contractual or regulatory model Accordingly, society imposes special ethical and legal requirements on persons who are regularly employed by clients, not to bring about a specific, definable result, but to exercise specialized knowledge and skills on their behalf' Tort law recognizes the inefficiency that can arise because of the disadvantages under which consumers labor in dealing with professionals by making certain obligations to clients an incident of professional status2 The

Contractual revisions to medical malpractice liability.

Abstract: In the past, courts have struck down or severely limited attempts by health care providers to use written contracts to reduce their liability for negligence, deeming such agreements to be contrary to public policy.' The basic reason is that courts have not traditionally viewed the relationship of patient and health care provider as a contractual one, freely entered by both parties. Rather, physicians and hospitals have been classified, like innkeepers, utilities, and common carriers, as entities to which individuals, with no real bargaining power, must resort out of necessity. Hence, courts have not really analyzed exculpatory patient/health care provider agreements in terms of mutuality of bargaining or \"arm's-length\" negotiation. Instead, courts have simply rejected them out of hand as contrary to the public interest. The decisions cite one or more of the following overlapping rationales:

Responsibility and Excuse in Medicine and Law: A Utilitarian Perspective

Abstract: In its most common usage, the term "responsible" connotes blame or obligation. A statement that one is responsible for an act that has already happened, particularly if it is an act of which most people would disapprove, often means that the actor is blameworthy. A statement that one is responsible for future conduct often means that the actor incurs an obligation to behave in a certain way and that if the obligation is not met, blame will ultimately follow. The attribution of responsibility to an individual for a given act implies that the individual had the capacity to choose to perform or not perform that act. Only those who appear able to choose are found blameworthy or are held to their obligations.1 Social systems are strengthened by holding people responsible for their conduct. The legal system, for example, obligates citizens to behave in ways that minimize the risk of social harm. Citizens know that they will be held responsible, that is, blamed, and perhaps subjected to punitive sanctions if they do not behave in such ways. This knowledge presumably leads to lawabiding behavior. Every civilized society has also developed mechanisms for excusing from legal blame or obligation those who appear unable to exercise choice. In the criminal law excuses are based upon psychological or physical incapacities that diminish the actor's knowledge of the nature and consequences of socially proscribed acts or upon some unusual environmental influence (such as duress) that was present at the time such acts occurred.2

Multiple Regression Analysis in Title VII Cases: A Structural Approach to Attacks of Missing Factors and “Pre-Act Discrimination”

Abstract: The necessity for increasingly sophisticated evidentiary approaches to proving class-based employment discrimination claims under Title VII of the Civil Rights Act of 19641 has led to increasing reliance on statistics by plaintiffs and defendants alike. One of the most sophisticated statistical techniques used to date in employment discrimination law is multiple regression analysis. The application of multiple regression analysis offers great and, perhaps, the only potential for addressing certain types of Title VII claims, particularly wage discrimination claims. Recent court decisions, however, have made abundantly clear that evidentiary presentations based on multiple regression will be carefully scrutinized, and that inadequately prepared statistics will be rejected. In the legal context, multiple regression is both a Mecca and a minefield.

The Second Amendment: A Dialogue

Abstract: A recent article in the National Rifle Association's magazine by Professor Stephen Halbrook, [1] whose book on the second amendment has also just appeared, [2] reviles certain conclusions of my article, Handgun Prohibition and the Original Meaning of the Second Amendment, published in the Michigan Law Review (the Michigan article) [3] as "Orwellian Newspeak." Having due regard for both the historical evidence cited in Professor Halbrook's article and the importance of his previous work in the area, [4] I have invited him to set forth his disagreement in greater detail here. At the same time, I take the opportunity to summarize my revised views as to the kinds of gun controls which the second amendment allows. First, however, I offer some discussion of a question which, although essentially preliminary, has almost completely monopolized modern discussion of the second amendment.

Malpractice reform through consumer choice and consumer education: are new concepts marketable?

Abstract: Will consumers voluntarily accept changes in the ways cases of medical malpractice are handled? Yes, under certain circumstances, they maybecause the conditions are right. Consumers in this context include not merely individuals but also employers and unions who make volume purchasing decisions and are responsible for individuals' health insurance bills. Until very recently, nearly all these large-scale purchasers of health benefits accepted massive medical cost increases with hardly a wince. Indeed, they continued to expand coverage. Despite rhetoric to the contrary, their behavior suggested that they felt virtually no pain from soaring malpractice costs-or other cost increases. "Defensive medicine" was something doctors did to children, with needles, not a malpractice-law-induced cost problem.' In the last few years, however, the scene has changed dramatically. Today, hardly a CEO of a Fortune 500 company or a trustee of a union health and welfare plan is unconcerned about health benefit costs. Some companies seek solace in group commiseration at business coalition meetings.2 Others have shifted the burden to employees through larger deductibles and co-payments. Union leaders, harkening to a rising chorus of demands from the rank-and-file for MOB (maintenance of benefits), have resisted the increased deductibles and co-payments whenever possible. But they have accepted certain other limitations on health care services covered by their negotiated plans. Predetermination of coverage for inpatient stays, mandatory second surgical

The Trouble With Statistical Evidence

Abstract: Statistical evidence-frequently known as mere statistical evidence-has suffered at the hands of its critics for some time now. The preceding piece by Professor Judith Jarvis Thomson2 continues to refine the attack on such evidence-at least where it is the only evidence to support a court's judgment. In candor, I must admit that I am far from sure that Professor Thomson's attack is wrong, though I think it probably is. Perhaps it would be better to say that I find her primary argument unconvincing. Professor Thomson mounts her argument largely in three hypothetical cases to which she applies the usual rules of evidence (or, in the last case, epistemology) to reach the conclusions that a civil defendant should be found liable, that a criminal defendant should be found guilty, and that a fact may be said to be known. Professor Thomson regards these conclusions as highly unsatisfactory, however, and isolates the problem in the statistical nature of the evidence supporting each result. She offers the implication that statistical evidence, at least by itself, provides insufficient grounds for a verdict in favor of the proponent of that evidence, primarily because it lacks a causal link to that which is to be proved. What is needed, she argues, is "individualized evidence," which, by her definition of the term, provides the necessary causal linkage. A very brief recap of the three central hypotheticals may be appropriate. Of the three, the first seems clearly the most important. It involves a hit and run automobile accident caused by a recklessly driven taxi. Identification of the taxi proves to be impossible, but it is known that the Red Cab Company owned and operated sixty percent of the taxis in circulation on the night in question. Since by assumption no other relevant facts are known, it is asserted that the probability that the accident was caused by Red Cab Company is sixty percent.3 Because this evidence meets the preponderance

Exceptions to a General Prohibition on Handgun Possession: Do They Swallow up the Rule?

Abstract: Current American gun law generally allows most people to own firearms, and there are approximately 140 million guns in private possession. It is estimated that one-third of the privately-owned firearms are handguns.' Only members of the most unreliable social categories-drug addicts, the mentally ill, convicted felons, juveniles 2-are denied permission to own firearms. 3 Some who decry this situation advocate \"total disarmament,\" arguing that everyone would be safer if no one were permitted to possess a firearm, especially a handgun. 4 They believe that a universal right to own firearms,

Desert, Punishment, and Criminal Responsibility

Abstract: The crucial element in any theory of punishment is its treatment of the matter of desert. For the retributivist, desert is the sole basis on which punishment properly is imposed; he is accordingly obliged to explain how desert attaches and, more particularly, how it is translated into a measurement of punishment. Those have proved to be difficult tasks. Objectors to the retributivist position not only question whether a person can be said to be guilty in the sense required by desert. They question also whether desert, if it is a meaningful concept, by itself justifies the deliberate infliction of pain; if pain itself is not a good and no good consequences are in view, they argue, the question can have only one answer. To fortify those questions, they challenge retributivists to make their position concrete and specify what punishment attaches by way of desert to specific crimes. 1