1. In Michael I. Krauss's article "Restoring the Boundary: Tort Law and the Right to Contract":

a. How are we protected from harm by others? How should we be protected?

b. Should courts be able to nullify contracts after the fact? Is the court using a property or liability rule here? Explain.

c. Are courts protecting poor consumers when they don't allow such consumers to trade less safety for a lower price?

a. What reasons do courts give for setting aside contacts that parties voluntarily agreed to? How does Rubin criticize these reasons? Explain. (Are court imposed contractual terms contracts of adhesion?)

b. Explain the following: "If tort law imposes costs on the injurer, then these costs will be borne by victims of higher prices." (P. 28.)

c. Why does Rubin claim that tort law is an inefficient method for compensating victims of accidents?

d. Rubin argues that "the great expansion in product liability...came when the courts extended strict liability from manufacturing defects to design defects." (P. 30.) Explain.

e. Why does Rubin conclude that "it is likely that a voluntary, contractual system would not provide compensation for non-pecuniary losses"? (P. 31.)

a. What are barratry, maintenance, and champerty?

b. What are the advantages of a tort market where torts are alienable?

c. Why will tort claims purchasers be able to offer greater compensation to victims? How does a secondary market in tort claims enhance the liquidity of an investment in a tort claim?

a. What are the main factors contributing to a rise in speculative tort litigation?

b. Why is the use of a jury in civil cases usually disastrous?

c. What are the advantages and disadvantages of a loser pays rule?

d. What problems does the use of contingency fees create?

a. Is an auto manufacturer responsible for the injuries suffered by passengers in collisions with third parties? Explain using the ruling in Evans v. General Motors.

b. How did Larson v. General Motors change this answer?

c. Why are courts suspicious of statutory safety mandates and industry standards in the case of automobiles?

d. Is the causal connection between a "design defect" and an injury easy or difficult to determine in such a case?

e. Why did the prosecution charge Ford with recklessness and why were such charges insufficient to establish criminality? (Hint: Is Ford's act of consciously trading cost against safety a criminal act?)

f. What is the problem of adequate notice and how is it applicable in this case?

g. How should this case have been tried? As a civil case? As a criminal case?

a. Why have the number of caesarean section deliveries increased?

b. Has the tort system improved the practice of medicine? Is EFM useful? Why does it continue to be used?

c. How have obstetricians reacted to increased malpractice insurance premiums? What other problems have emerged in reaction to rising malpractice insurance premiums?

d. How have poor families fared?

e. How can these problems be solved?

a. How do ex ante decisions differ from ex post decisions in the case of health care provided by an HMO? (Be sure to contrast the consumer to the provider.)

b. Why does Rubin argue that product liability rules which shifted the responsibility for consumer harms to manufacturers was inefficient and not in consumers’ interests?

c. What are the major consequences of applying malpractice liability tort law to managed care (HMOs) provided by employers?

d. Why does provision of medical care through voluntary contract have such desirable properties?

e. What incentives do HMOs have to provide quality care?

f. What penalties for breach of contract would be used against an HMO? Why isn’t increased liability used as a penalty against an HMO?

g. Who suffers most from allowing malpractice suits against HMOs?

h. Would tort payments generate sufficient benefits to cover their costs? Explain using the some of the examples Rubin discusses.

a. Explain what the tragedy of the judicial commons is and how it arises.

b. How does the tragedy apply to the case of asbestos?

a. Why do large litigation settlements have such devastating consequences for medical care in Mississippi?

b. What are some of the possible consequences of rising tort awards in the future? How can they create “economic havoc”?

c. Discuss some of the problems that might occur in the five areas discussed in the article: medical care, prescription drugs, construction companies, and asbestos.

a. Why do the public police and public courts have such great discretion over the enforcement of laws? How does this discretion lead to corruption?

b. Explain how (i) the probability of detection, (ii) the severity of punishment, and (iii) the payoffs influence the incentives for corruption.

c. Why is corruption expected to increase at an increasing rate as we continue the historical trend toward increasing criminalization and the growth of the public law enforcement sector?

d. What do the issues of the commons and property rights have to do with illegal markets?

a. Distinguish between a right to full restoration and a right to punishment. Explain what is meant by full restoration.

b. What problems occur if victims are allowed to determine damages for unmeasurable harms? How are these problems resolved? Explain.

c. Can judgment-proof criminals (who do not have sufficient financial resources) escape the requirements of restitution? What kinds of solutions are available?

d. Legislatures have passed numerous victim restitution laws. Who benefits from these laws? Victims? Using public choice concepts, can you explain why special interest groups might be the primary beneficiaries of such legislation?

e. Explain how the Japanese incorporate restitution into their criminal justice system and its effects on crime?

f. What does Benson mean when he says victims should be responsible? Responsible for what?

g. Why does restitution raise the price of crime to the criminal? What happens to crime as a result? Explain, using Benson's five categories.

h. What role do property rights play in this discussion of restitution and public enforcement of laws?

a. What services have private markets in crime control provided for their customers? (Hint: Look at a sampling of services in prevention, pursuit, prosecution, and punishment.)

b. Does the profit motive lead to cost cutting and poor quality?

c. Will private providers of security and justice abuse their power?

d. Will private security only be affordable for the wealthy?

e. What evidence do we have about the market performance of private security from Starrett City? Explain.

f. How can we encourage greater entrepreneurial discovery in efforts to control crime? (Hint: Look especially at private sector prevention, restitution, and legal barriers to private pursuit and prosecution.)

a. How has the government's monopoly over the criminal justice system affected restitution and the right to protection for private citizens?

b. Are private firms more or less likely to abuse their customers? Explain.

c. Why have the railroad police been so successful relative to the public police?

d. Why are private bail bondsmen more effective than their public counterparts?

e. What potential abuses can arise under private law enforcement? Are these abuses more or less likely to occur with public police? Explain.

f. How can the integration of tort and criminal law improve the possibility that crime victims will obtain restitution?

g. Why do public attempts at victim restitution inadequate?

a. What role did the chieftain play in the Icelandic legal system?

b. What method did courts use to enforce their verdicts?

c. What role do property rights play in the Icelandic legal system when a crime has occurred?

d. Why was all Icelandic law civil in nature? When a criminal act occurred in Iceland, how was the victim compensated? How would current legal systems handle such a problem?

e. Why did the Icelandic legal system distinguish between killing and murder?

a.  Why has the judicial system recently become more bureaucratized?

b. How can a private judiciary relieve the bottleneck created in the public courts?

c. Why are more and more potential litigants solving their problems outside the public courtroom?

a. What are the determinants of the demand for prison space?

b. Why are prisons treated as a free common pool resource?

c. What are some of the consequences of treating prisons as a common pool resource? Who bears the costs of overcrowding?

d. What is the property rights solution to this problem?

e. What are the alternatives to the current system and how would they solve the problems of the current system?

a. What changes did the new warden (Richard Oliver) introduce at Maine State Prison (MSP)? What were the results of these changes?

b. Why do laws exist which restrict the ability of prisoners to do productive work?

c. Why did the crackdown occur? Should prisoners have charge of their economic lives or should the government have charge of them?