The University of Texas at Austin   School of Law

Publications

Books

• Principles of the Law of Aggregate Litigation (St. Paul: American Law Institute Publishers, 2010) (associate reporter, with Samuel Issacharoff, reporter & Robert H. Klonoff & Richard A. Nagareda, associate reporters).
• Special Project on the Professional Responsibilities of Insurance Defense Lawyers, Part 1: Full-Coverage Representations (International Association of Defense Counsel, 1995) (with Kent D. Syverud).

Articles

• Will Tort Reform Bend the Cost Curve? Evidence from Texas, 9 Journal of Empirical Legal Studies 173 (2012) (with Mungho Paik, Bernard S. Black, & David A. Hyman).
• Healthcare Quality, Patient Safety, and the Culture of Medicine: "Denial Ain't Just a River in Egypt" [Symposium: On the Table: An Examination of Medical Malpractice, Litigation, and Methods of Reform], 46 New England Law Review 417 (2012).
• Medical Malpractice and Compensation in Global Perspective: How Does the U.S. Do It? [Symposium: Medical Malpractice and Compensation in Global Perspective Part II], 87 Chicago Kent Law Review 163 (2012).
• The Responsibilities of Lead Lawyers and Judges in Multidistrict Litigations [Symposium: Civil Procedure and the Legal Profession], 79 Fordham Law Review 1985 (2011). View Article
• Fiduciaries and Fees: Preliminary Thoughts [Symposium: Civil Procedure and the Legal Profession], 79 Fordham Law Review 1833 (2011) (with Lynn A. Baker). View Article
• Ethics and Innovation [Symposium: Aggregate Litigation: Critical Perspectives], 79 George Washington Law Review 754 (2011). View Article
• The Controversy Surrounding the Criminal Probe into the Gulf Oil Spill, Huffington Post, July 19, 2010 (with Susan R. Klein). <http://www.huffingtonpost.com/susan-klein/the-controversy-surroundi_b_651805.html>
• O'Connell Early Settlement Offers: Toward Realistic Numbers and Two-Sided Offers, 7 Journal of Empiricial Legal Studies 379 (2010) (with Bernard S. Black & David A. Hyman).
• The Quasi-Class Action Method of Managing Multi-District Litigation: Problems and a Proposal, 63 Vanderbilt Law Review 107 (2010) (with Geoffrey P. Miller).
• Access to Justice in a World Without Lawyers: Evidence from Texas Bodily Injury Claims, 58 Fordham Urban Law Journal 357 (2010) (with David A. Hyman).
• The 9/11 Lawyers Deserve Praise: Don't Arbitrarily Slash Their Fees, New York Daily News, March 22, 2010. <http://www.nydailynews.com/opinions/2010/03/22/2010-03-22_the_911_lawyers_deserve_praise.html>
• A New Model for Mass Torts? The Huffington Post, June 21, 2010. http://www.huffingtonpost.com/charles-m-silver/a-new-model-for-mass-tort_b_619837.html>
• How Should Medical Malpractice Litigation be Dealt with in U.S. Health Care Reform? Washington Times, August 23, 2009 at M11 (with David A. Hyman).
• Silver: Texas-Style Caps on Noneconomic Damages isn't Smart Tort Reform, Star-Telegram, July 18, 2009 (with Ronen Avraham & David A. Hyman).
• Only Pay for Health Care that Works, The Detroit News, November 3, 2009 (with David A. Hyman).
• Estimating the Effect of Damage Caps in Medical Malpractice Cases: Evidence from Texas, 1 Journal of Legal Analysis 355 (2009) (with David A. Hyman, Bernard S. Black & William M. Sage).
• Malpractice Payouts and Malpractice Insurance: Evidence from Texas Closed Claims, 1990-2003, 33 The Geneva Papers on Risk and Insurance: Issues and Practice 177 (2008) (with Bernard Black, Kathryn Zeiler, David Hyman & William Sage).
• Incentivizing Institutional Investors to Serve as Lead Plaintiffs in Securities Fraud Class Actions [Symposium: Thirteenth Anuual Clifford Symposium on Tort Law and Social Policy], 57 DePaul Law Review 471 (2008) (with Sam Dinkin).
• The Impact of the 2003 Medical Malpractice Damages Cap on Physician Supply and Insurer Payouts: Separating Facts from Rhetoric, Texas Advocate, Fall 2008 at 25 (with Bernard S. Black & David Hyman).
• Defense Costs and Insurer Reserves in Medical Malpractice and Other Personal Injury Cases: Evidence from Texas, 1988-2004, 10 American Law and Economics Review 185 (2008) (with Bernard S. Black, David A. Hyman, & William M. Sage).
• Physicians' Insurance Limits and Malpractice Payments: Evidence from Texas Closed Claims, 1990-2003, 36 The Journal of Legal Studies S9 (2007) (with Kathryn Zeiler, Bernard S. Black, David A. Hyman & William M. Sage).
• Do Defendants Pay What Juries Award?: Post-Verdict Haircuts in Texas Medical Malpractice Cases, 1988-2003, 4 Journal of Empirical Legal Studies 3 (2007) (with David Hyman, Kathryn Zeiler, William M. Sage & Bernard S. Black).
• Dissent from Recommendation to Set Fees Ex Post, 25 The Review of Litigation 497 (2006).
• Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid, 59 Vanderbilt Law Review 1085 (2006) (with David A. Hyman).
• False Diagnosis: Don't Mess with Texas's Tort System, New York Times, Mar. 10, 2005, at A25 (with Bernard Black, David Hyman & William Sage).
• Medical Malpractice Reform REDUX: Déjà Vu All Over Again?, 12 Widener Law Review 121 (2005) (with David A. Hyman).
• The Poor State of Health Care Quality in the U.S.: Is Malpractice Liability Part of the Problem or Part of the Solution?, 90 Cornell Law Review 893 (2005) (with David A. Hyman).
• Speak Not of Error: Does Legal Fear Increase the Risk of Medical Error?, Regulation, Spring 2005, at 52 (with David A. Hyman).
• A Rejoinder to Lester Brickman: On the Theory Class's Theories of Asbestos Litigation, 32 Pepperdine Law Review 765 (2005).
• Stability, Not Crisis: Medical Malpractice Claim Outcomes in Texas, 1988-2002, 2 Journal of Empirical Legal Studies 207 (2005) (with Bernard Black, David A. Hyman & William M. Sage).
• Merging Roles: Mass Tort Lawyers as Agents and Trustees, 31 Pepperdine Law Review 301 (2004).
• "We're Scared to Death": Class Certification and Blackmail, 78 New York University Law Review 1357 (2003).
• What Lawsuit Abuse?, Dallas Morning News, Apr. 14, 2002, at 5J.
• When Should Government Regulate Lawyer-Client Relationships? The Campaign to Prevent Insurers from Managing Defense Costs, 44 Arizona Law Review 787 (2002).
• Introduction: Civil Justice Fact and Fiction [Symposium: The Impact of Civil Justice on the American Economy & Polity], 80 Texas Law Review 1537 (2002) (with Lynn A. Baker).
• Does Civil Justice Cost Too Much? [Symposium: The Impact of Civil Justice on the American Economy & Polity], 80 Texas Law Review 2073 (2002).
• A Critique of Burrow v. Arce, 26 William & Mary Environmental Law & Policy Review 323 (2001).
• Defense Lawyers' Professional Responsibilities: Part II--Contested Coverage Cases, 15 Georgetown Journal of Legal Ethics 29 (2001) (with Ellen S. Pryor).
• Just What the Patient Ordered: The Case for Result-Based Compensation Arrangements, 29 Journal of Law, Medicine & Ethics 170 (2001) (with David A. Hyman).
• You Get What You Pay For: Result-Based Compensation for Health Care, 58 Washington & Lee Law Review 1427 (2001) (with David A. Hyman).
• Due Process and the Lodestar Method: You Can't Get There from Here, 74 Tulane Law Review 1809 (2000).
• Defense Lawyers' Professional Responsibilities: Part I--Excess Exposure Cases, 78 Texas Law Review 599 (2000) (with Ellen S. Pryor).
• How Not to Start an Ethics Investigation, Texas Lawyer, Feb. 1, 1999, at 33.
• Preliminary Thoughts on the Economics of Witness Preparation, 30 Texas Tech Law Review 1383 (1999).
• The Aggregate Settlement Rule and Ideals of Client Service, 41 South Texas Law Review 227 (1999) (with Lynn A. Baker).
• Yale Should Censure Most Famous Grad, National Law Journal, Sept. 14, 1998, at A21.
• Just Blowing Smoke, Texas Lawyer, June 8, 1998, at 32.
• Stiffing of Lawyers a Payback for Donations to Opponents, Fort Lauderdale Sun-Sentinel, May 11, 1998, at 9A.
• The $2.3 Billion Question: Ethical Thing to Do Is to Pay Lawyers, Austin American-Statesman, Feb. 7, 1998, at A15.
• Was the Price Right?, Texas Lawyer, Feb. 2, 1998, at 22.
• The Lost World: Of Politics and Getting the Law Right, 26 Hofstra Law Review 773 (1998).
• I Cut, You Choose: The Role of Plaintiffs' Counsel in Allocating Settlement Proceeds, 84 Virginia Law Review 1465 (1998) (with Lynn A. Baker).
• And Such Small Portions: Limited Performance Agreements and the Cost/Quality/Access Trade-Off, 11 Georgetown Journal of Legal Ethics 959 (1998) (with David A. Hyman).
• Flat Fees and Staff Attorneys: Unnecessary Casualties in the Continuing Battle over the Law Governing Insurance Defense Lawyers, 4 Connecticut Insurance Law Journal 205 (1997-98).
• Mass Lawsuits and the Aggregate Settlement Rule, 32 Wake Forest Law Review 733 (1997) (with Lynn A. Baker).
• Are Liability Carriers Second-Class Clients? No, But They May Be Soon--A Call to Arms Against the Restatement (Third) of the Law Governing Lawyers, Coverage, March-April 1996, at 21 (with Michael Sean Quinn).
• All Clients Are Equal, but Some Are More Equal Than Others: A Reply to Morgan and Wolfram, Coverage, May/June 1996, at 47 (with Michael Sean Quinn).
• The Legal Establishment Meets the Republican Revolution, 37 South Texas Law Review 1247 (1996).
• Professional Liability Insurance as Insurance and as Lawyer Regulation: Response to Davis, 65 Fordham Law Review 233 (1996).
• Wrong Turns on the Three Way Street: Dispelling Nonsense About Insurance Defense Lawyers, Coverage, November-December 1995, at 1 (with Michael Sean Quinn).
• The Professional Responsibilities of Insurance Defense Lawyers, 45 Duke Law Journal 255 (1995) (with Kent Syverud).
• Special Project on Professional Responsibilities of Insurance Defense Lawyers, 62 Defense Counsel Journal 502 (1995) (with Kent D. Syverud).
• A Word From the Chair, 8 Insurance Law Anthology xvii (1995).
• Control Fees? No, Let the Free Market Do Its Job, National Law Journal, Apr. 18, 1994, at A17.
• A Model Retainer Agreement for Legal Services Programs: Mandatory Attorney Fee Provisions, 28 Clearinghouse Review 114 (1994) (with Stephen Yelenosky).
• For Schmethics, AALS Section on Professional Responsibility Newsletter, Spring 1994, at 14.
• What's Ethics Got to Do With It? The Manhattan Institute Proposal in Perspective, AALS Section on Professional Responsibility Newsletter, Spring 1994, at 2.
• Does Insurance Defense Counsel Represent the Company or the Insured?, 72 Texas Law Review 1583 (1994). [Reprinted in Insurance Law: What Every Lawyer and Businessperson Needs to Know 95 (New York: Practicing Law Institute, 1998).]
• Introduction to the Symposium [Symposium: Law of Bad Faith in Contract and Insurance], 72 Texas Law Review 1203 (1994) (with Ellen Smith Pryor).
• Incoherence and Irrationality in the Law of Attorneys' Fees, 12 Review of Litigation 301 (1993).
• Public Choice and Judicial Review, 18 Law & Social Inquiry 165 (1993).
• Unloading the Loadstar: Toward a New Fee Award Procedure, 70 Texas Law Review 865 (1992).
• A Restitutionary Theory of Attorneys’ Fees in Class Actions, 76 Cornell Law Review 656 (1991).
• Comparing Class Actions and Consolidations, 10 Review of Litigation 231 (1991).
• A Missed Misalignment of Interests: A Comment on Syverud, The Duty to Settle, 77 Virginia Law Review 1585 (1991). [Reprinted in 6 Insurance Law Anthology 857 (1992).]
• Justice in Settlements, 4 Social Philosophy & Policy 102 (1986) (with J. Coleman).
• Negative Positivism and the Hard Facts of Life, 68 The Monist 347 (1985).
• Utilitarian Participation, 23 Social Science Information 701 (1984).
• Public Opinion and the Federal Judiciary: Crime, Punishment, and Demographic Constraints, 3 Population Research & Policy Review 255 (1984 (with Robert Y. Shapiro).

Reviews

• What's Not To Like About Being a Lawyer?, 109 Yale Law Journal 1443 (2000) (with Frank B. Cross). [Essay reviewing Lawyer: A Life of Counsel and Controversy, by Arthur L. Liman.]
• Public Choice and Judicial Review, 18 Law & Social Inquiry 165 (1993) (reviewing Daniel A. Farber & Philip P. Frickey, Law and Public Choice: A Critical Introduction, & Glen O. Robinson, American Bureaucracy: Public Choice and Public Law).
• American Political Theory Considered, 60 George Washington Law Review 562 (1992) (reviewing The Federal Courts in the Political Order: Judicial Jurisdiction and American Political Theory, by Martin Redish).
• Outsider Jurisprudence from an Insider, 16 Law & Social Inquiry 575 (1991) (reviewing The Problems of Jurisprudence, by Richard Posner).
• Bentham and the Common Law Tradition, by Gerald J. Postema, 99 Ethics 164 (1988).
• Theories of Evidence: Bentham and Wigmore, by William Twining, 98 Ethics 209 (1987).
• Elmer's Case: A Legal Positivist Replies to Dworkin, 6 Law & Philosophy 381 (1987).
• Ronald Dworkin and Contemporary Jurisprudence, ed. by Marshall Cohen, 95 Ethics 356 (1985).
• Maidens, Meal and Money: Capitalism and the Domestic Community, by Claude Meillassoux, and Malinowski in Mexico: The Economics of the Mexican Market System, by Bronislaw Malinowski & Julio de la Fuente, 94 Ethics 721 (1984).
• Experimentation in the Law: Report of the Federal Judicial Center Advisory Committee on The Sociology of Law: A Social-Structural Perspective, ed. by William M. Evan, 94 Ethics 734 (1984).
• The Legal Enforcement of Morality, by Thomas C. Gray, 95 Ethics 156 (1984).
• Law, Economics, and Philosophy, ed. by Mark Kuperberg & Charles Beitz, 95 Ethics 180 (1984).
• Sociological Approaches to Law, ed. by Adam Podgorecki & Christopher J. Whelan, 94 Ethics 562 (1984).
• Experimentation in the Law, 93 Ethics 644 (1983).
• Bentham and Bureaucracy, by Leonard J. Hume, 93 Ethics 639 (1983).
• Courts: A Comparative and Political Analysis, by Martin Shapiro, 92 Ethics 797 (1982).
• A National Strategy for Containing White-Collar Crime, by Herbert Edelhertz & Charles Rogovin, 92 Ethics 602 (1982).
• Sentencing, by Hyman Gross & Andrew von Hirsch, 92 Ethics 602 (1982).
• Economic Special-Opportunity Conduct and Crime, by Pawel Horoszowski, 92 Ethics 601 (1982).
• Essays in Law and Society, ed. by Zenon Bankowski & Geoff Mungham, 93 Ethics 204 (1982).

Contributions

• Representative Lawsuits & Class Actions, in 5 Encyclopedia of Law and Economics 194 (B. Bouckaert & G. De Geest eds; Cheltenham, U.K.: Edward Elgar, 2000).
• Bargaining Impediments and Settlement Behavior, in Dispute Resolution: Bridging the Settlement Gap 51 (David A. Anderson ed.; Greenwich, CT: JAI Press, 1996) (with Samuel Issacharoff & Kent D. Syverud).
• Do We Know Enough About Legal Norms?, in Social Rules: Origin; Character; Logic; Change 141 (David Braybrooke ed.; Boulder, CO: Westview Press, 1996).
• Getting and Keeping Clients: Advertising and Marketing Legal Services, in A Guide to the Basics of Law Practice 21 (W. Frank Newton ed.; Austin: Texas Center for Legal Ethics and Professionalism, 1996 ed.) (with James M. McCormack & Mitchel L. Winick).
• Your Role in a Law Firm: Responsibilities of Senior and Junior Attorneys, in A Guide to the Basics of Law Practice 103 (W. Frank Newton ed.; Austin: Texas Center for Legal Ethics and Professionalism, 1996 ed.).
• Advertising and Marketing Legal Services, in A Guide to the Basics of Law Practice, 15 (Austin: Texas Center for Legal Ethics and Professionalism, 1995 ed.).
• Getting and Keeping Clients, in The Ethics Course, 1995-96 75 (Beryl P. Crowley ed.; Austin: Texas Center for Legal Ethics and Professionalism, 1995) (with James M. McCormack & Mitchel L. Winick).
• Responsibilities of Senior and Junior Attorneys, in A Guide to the Basics of Law Practice, 151 (Austin: Texas Center for Legal Ethics and Professionalism, 1995 ed.).
• Responsibilities of Senior and Junior Attorneys, in A Guide to the Basics of Law Practice 267 (W. Frank Newton ed.; 1994).
• Introduction: Thoughts on Procedural Issues in Insurance Litigation, in 7 Insurance Law Anthology xi (Donald J. Hoyes ed.; 1994).
• Advertising and Marketing Legal Services, in A Guide to the Basics of Law Practice 31 (W. Frank Newton ed.; 1994 ed.).

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