Copyright (c) 2009 All rights reserved. http://works.bepress.com/christopher_robertson Recent documents in Christopher T. Robertson, J.D., Ph.D. en-us Mon, 17 Aug 2009 18:22:46 PDT 3600 http://works.bepress.com/christopher_robertson/3 http://works.bepress.com/christopher_robertson/3 Fri, 13 Mar 2009 12:50:12 PDT America spends hundreds of billions of dollars on its system of civil litigation, and expert witnesses appear in the vast majority of cases. Yet, litigants currently select and retain expert witnesses in ways that create the appearance of biased hired-guns on both sides of every case and thereby deprive factfinders of a clear view of the scientific facts. As a result, factfinders too often get it wrong, which undermines deterrence and compensation and facilitates frivolous claims and defenses. Although many have suggested that court-appointed experts could be a solution, such proposals raise concerns about accuracy and fairness and have failed to gain traction in the American system that depends on deeply-ingrained adversarial norms and incentives. Drawing on the notion of blind research used in the sciences and the veil of ignorance in political theory, this Article offers a novel and feasible reform that brings unbiased experts to factfinders as a rational strategy of self-interested litigants within the adversarial system. If litigants use an intermediary to randomly select qualified experts to render opinions without knowledge of their sponsors, some biases can be eliminated and those litigants will win more cases. A probabilistic analysis reveals that the result will be greater accuracy of litigation outcomes compared to the status quo and compared to litigation with court-appointed experts. A game theoretic analysis shows that status quo discovery rules make this a no-risk proposition for litigants, and that they will employ the procedure as a rational strategy in litigation. Courts and legislatures can, with minimal interventions, ensure that blind expertise becomes the new gold standard in litigation, just as it is in science. This Article explores blind expertise as a worthwhile reform to the system of medical malpractice liability in particular and suggests that the procedure may be viable in many other contexts beyond litigation, wherever laypersons must rely upon experts that may be biased. Christopher T. Robertson Health Law, Policy and Bioethics http://works.bepress.com/christopher_robertson/2 http://works.bepress.com/christopher_robertson/2 Mon, 20 Aug 2007 20:15:13 PDT In recent years, there has been national alarm about the rising rate of home foreclosures, which now strike one in every 92 households in America and which contribute to even broader macroeconomic effects. The "standard account" of home foreclosure attributes this spike to loose lending practices, irresponsible borrowers, a flat real estate market, and rising interest rates. Based on our study of homeowners going through foreclosures in four states, we find that the standard account fails to represent the facts and thus makes a poor guide for policy. In contrast, we find that half of all foreclosures have medical causes, and we estimate that medical crises put 1.5 million Americans in jeopardy of losing their homes last year. Half of all respondents (49%) indicated that their foreclosure was caused in part by a medical problem, including illness or injuries (32%), unmanageable medical bills (23%), lost work due to a medical problem (27%), or caring for sick family members (14%). We also examined objective indicia of medical disruptions in the previous two years, including those respondents paying more than $2,000 of medical bills out of pocket (37%), those losing two or more weeks of work because of injury or illness (30%), those currently disabled and unable to work (8%), and those who used their home equity to pay medical bills (13%). Altogether, seven in ten respondents (69%) reported at least one of these factors. If these findings can be replicated in more comprehensive studies, they will suggest critical policy reforms. We lay out one approach, focusing on an insurance-model, which would help homeowners bridge temporary gaps caused by medical crises. We also present a legal proposal for staying foreclosure proceedings during verifiable medical crises, as a way to protect homeowners and to minimize the negative externalities of foreclosure. Christopher T. Robertson Health Law, Policy and Bioethics http://works.bepress.com/christopher_robertson/1 http://works.bepress.com/christopher_robertson/1 Mon, 05 Mar 2007 13:42:14 PST In America alone almost 100,000 people are suffering while waiting for organ transplants, and more than 7,300 of these patients will die waiting. Given that tens of thousands of useable cadaveric organs are buried or incinerated every year, the organ shortage is a social, political and legal problem, one that is inherent in the conceptual design of the current organ system. While the system is supposed to turn on individuals' autonomous choices, it instead depends on default outcomes and the decisions of next of kin. While we tend to think about the organ choice as one of altruism (viz. -- "giving the gift of life"), it is not clear that cadaveric organ donations are actually altruistic, nor is it clear why promotion of altruism should be a goal of our organ system. Most importantly, the status quo system facilitates free riding by alienating the decisions to give and take organs. In contrast, original empirical research suggests that respondents intuitively understand the relationship between these two decisions, and that many will decline to free ride when given the opportunity to think of themselves as potential takers of organs. Even worse, the current system creates an injustice, violating basic principles of reciprocity, by giving scarce organs to those who have refused to contribute organs themselves. As a result, these free riders take organs that could save the lives of others. The bottom line: Under any such system that allows rampant free riding, the fact of a shortage should be unsurprising.This essay proposes an integrated system for procuring and distributing cadaveric organs, based on the notion of a cooperative project. Under this paradigm, individuals would join the organ system as both potential suppliers of cadaveric organs and potential recipients of organs. This cooperative system should operate on an opt-out basis, so that all persons would be participants, unless they chose to remove themselves, and would depend on a national donor registry. This approach respects autonomy, resolves the injustice, reflects the value of cooperation, and holds promise for minimizing the shortage. Christopher T. Robertson Health Law, Policy and Bioethics