Open Access. Powered by Scholars. Published by Universities.®

Law Commons™

Open Access. Powered by Scholars. Published by Universities.®

Law

Selected Works

Punitive damages

Articles 1 - 30 of 41

Full-Text Articles in Law

An Undetectable Constitutional Violation, Jill W. Lens Jul 2017

An Undetectable Constitutional Violation, Jill W. Lens

Jill Wieber Lens

In Philip Morris USA v. Williams, the Supreme Court mandated that lower courts implement procedural protections to ensure that the jury, when awarding punitive damages, properly considers evidence of the defendant’s harming nonparties. The jury can consider that evidence when determining the level of defendant’s reprehensibility, but punishment for causing that nonparty harm would violate the defendant’s constitutional rights.

Ten years later, this Article is the first to examine lower courts’ attempts to comply with Philip Morris. The Article first seeks to clarify how evidence of nonparty harm can demonstrate reprehensibility, a clarification necessary before courts can even begin …

Go to article

Justice Thomas, Civil Asset Forfeitures, And Punitive Damages, Jill W. Lens Jul 2017

Justice Thomas, Civil Asset Forfeitures, And Punitive Damages, Jill W. Lens

Jill Wieber Lens

For centuries, governments have used civil asset forfeiture laws to seize property used in criminal activity and then use civil proceedings to take ownership of that same property. Forfeitures have caught the attention of media, John Oliver, and the Supreme Court. In March, because of waiver, the Supreme Court denied certiorari in Leonard v. Texas, a case that claimed Texas’s civil forfeiture laws violated due process. Justice Thomas agreed with the denial, but wrote separately to question the constitutionality of civil forfeiture laws. The Court has always held civil asset forfeitures to be constitutional because of their long existence, and …

Go to article

Section 1983 Civil Rights Litigation Colloquium, Erwin Chemerinsky, Martin A. Schwartz Jun 2017

Section 1983 Civil Rights Litigation Colloquium, Erwin Chemerinsky, Martin A. Schwartz

Erwin Chemerinsky

No abstract provided.

Go to article

Defective Punitive Damage Awards, Jill W. Lens Mar 2017

Defective Punitive Damage Awards, Jill W. Lens

Jill Wieber Lens

Private redress theories of punitive damages recognize an individual victim’s right to be punitive. That right exists because the defendant knew its conduct would probably cause the victim a severe injury, yet the defendant still acted, willfully injuring the victim. The injured victim can seek and obtain punitive damages to punish the defendant for disrespecting her rights. 

This Article is the first to apply private redress theories of punitive damages to claims involving a defective product. This application is unexpectedly difficult because of the importance of evidence of harm to nonparties in establishing defect, and because the defendant’s knowledge of …

Go to article

Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew F. Popper Nov 2016

Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew F. Popper

Andrew Popper

Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields. This Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in …

Go to article

Measurement Of Restitution: Coordinating Restitution With Compensatory Damages And Punitive Damages, Doug Rendleman Dec 2015

Measurement Of Restitution: Coordinating Restitution With Compensatory Damages And Punitive Damages, Doug Rendleman

Doug Rendleman

No abstract provided.

Go to article

Measurement Of Restitution: Coordinating Restitution With Compensatory Damages And Punitive Damages, Doug Rendleman Dec 2015

Measurement Of Restitution: Coordinating Restitution With Compensatory Damages And Punitive Damages, Doug Rendleman

Doug Rendleman

No abstract provided.

Go to article

Measurement Of Restitution: Coordinating Restitution With Compensatory Damages And Punitive Damages, Doug Rendleman Dec 2015

Measurement Of Restitution: Coordinating Restitution With Compensatory Damages And Punitive Damages, Doug Rendleman

Doug Rendleman

No abstract provided.

Go to article

Section 1983 Civil Rights Litigation Colloquium, Erwin Chemerinsky, Martin A. Schwartz Oct 2015

Section 1983 Civil Rights Litigation Colloquium, Erwin Chemerinsky, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Go to article

Remedies: A Guide For The Perplexed, Doug Rendleman Sep 2015

Remedies: A Guide For The Perplexed, Doug Rendleman

Doug Rendleman

Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …

Go to article

Variability In Punitive Damages: Empirically Assessing Exxon Shipping Co. V. Baker, Theodore Eisenberg, Michael Heise, Martin T. Wells Feb 2015

Variability In Punitive Damages: Empirically Assessing Exxon Shipping Co. V. Baker, Theodore Eisenberg, Michael Heise, Martin T. Wells

Michael Heise

Exxon Shipping Co. v. Baker acknowledged that empirical studies undercut criticism of punitive damages. Paradoxically, the Court simultaneously expressed concern about jury predictability based on a high and variable punitive–compensatory ratio published in an article by the present authors. The Court reduced the $2.5 billion Exxon Valdez punitive award to $500 million and stated: “the constitutional outer limit may well be 1:1.” Our empirical findings do not support the unpredictability concern or widely applying the limiting ratio. The high and variable ratio is an artifact of not accounting for the key variable that explains punitive awards – the compensatory award.

Go to article

Judge-Jury Difference In Punitive Damages Awards: Who Listens To The Supreme Court?, Theodore Eisenberg, Michael Heise Feb 2015

Judge-Jury Difference In Punitive Damages Awards: Who Listens To The Supreme Court?, Theodore Eisenberg, Michael Heise

Michael Heise

We analyze thousands of trials from a substantial fraction of the nation’s most populous counties as well as a smaller sample of less populous counties. Evidence from four major Civil Justice Survey data sets spanning more than a decade establishes that: (1) compensatory awards are strongly associated with punitive awards and (2) the punitive-compensatory relation has not materially changed over time. But (3) 2005 data suggest, for the first time, systematic differences between judges and juries in the punitive-compensatory relation. Despite claims that the Supreme Court’s State Farm decision changed the punitivecompensatory relation, we present evidence that the 2005 shift …

Go to article

The Decision To Award Punitive Damages: An Empirical Study, Theodore Eisenberg, Michael Heise, Nicole L. Waters, Martin T. Wells Feb 2015

The Decision To Award Punitive Damages: An Empirical Study, Theodore Eisenberg, Michael Heise, Nicole L. Waters, Martin T. Wells

Michael Heise

Empirical studies have consistently shown that punitive damages are rarely awarded, with rates of about 3 to 5 percent of plaintiff trial wins. Using the 2005 data from the Bureau of Justice Statistics Civil Justice Survey, this article shows that knowing in which cases plaintiffs sought punitive damages transforms the picture of punitive damages. Not accounting for whether punitive damages were sought obscures the meaningful punitive damages rate, the rate of awards in cases in which they were sought, by a factor of nearly 10, and obfuscates a more explicable pattern of awards than has been reported. Punitive damages were …

Go to article

Daños Punitivos En Mexico. Renacimiento De La Responsabilidad Civil, Jorge E. De Hoyos Walther Aug 2014

Daños Punitivos En Mexico. Renacimiento De La Responsabilidad Civil, Jorge E. De Hoyos Walther

Jorge E De Hoyos Walther

La Suprema Corte de Justicia reconoce la existencia de los daños punitivos en México. Esta resolución tendrá un impacto importante en las demandas por responsabilidad civil y en los litigios transfronterizos.

Go to article

Tort Law's Deterrent Effect And Procedural Due Process, Jill W. Lens Dec 2013

Tort Law's Deterrent Effect And Procedural Due Process, Jill W. Lens

Jill Wieber Lens

The defendants in Philip Morris USA v. Williams and Wal-Mart Stores, Inc. v. Dukes claimed a right to present defenses. The defendants also both claimed that the mechanisms in place in those cases — the consideration of nonparties in imposing punitive damages and the use of sampling to litigate a large class action — violated that right. The Supreme Court agreed, a death knell for the advocated use of both mechanisms to counteract tort law’s under-litigation problem: the fact that not all injured persons sue, precluding tort law’s ability to achieve effective deterrence. 

This Article argues that procedural due process …

Go to article

Breathe Deeply: The Tort Of Smokers' Battery, Irene Scharf Nov 2013

Breathe Deeply: The Tort Of Smokers' Battery, Irene Scharf

Irene Scharf

This Article explores the long and faltering history of attempts to impose liability on tobacco product manufactures. Part II traces the manufacturers' historical and current actions of targeting youth through both promotions and deceptive advertising. Part III argues in favor of an expanded cause of action against the manufacturers for the intentional tort of battery. Part IV discusses the prospect of awards of punitive damages in these cases, and the Epilogue summarizes other advantages of the battery cause of action.

Go to article

Justice Holmes’S Bad Man And The Depleted Purposes Of Punitive Damages, Jill W. Lens Dec 2012

Justice Holmes’S Bad Man And The Depleted Purposes Of Punitive Damages, Jill W. Lens

Jill Wieber Lens

Justice Holmes introduced his bad man as a tool to separate law and morality. The bad man is not affected by morality, and sees a tort duty only as an obligation to pay damages. The bad man does not consider any chance of escaping liability, so he sees that obligation as mandatory. Applied hypothetically to punitive damages, the bad man would not appreciate the morality basis for imposing punitive damages or the moral condemnation and stigma that traditionally results from that imposition. Instead, he sees punitive damages as just another check that he will be required to write. 

In Exxon …

Go to article

The Relation Between Punitive And Compensatory Awards: Combining Extreme Data With The Mass Of Awards, Theodore Eisenberg, Valerie P. Hans, Martin T. Wells Mar 2012

The Relation Between Punitive And Compensatory Awards: Combining Extreme Data With The Mass Of Awards, Theodore Eisenberg, Valerie P. Hans, Martin T. Wells

Valerie P. Hans

This article assesses the relation between punitive and compensatory damages by combining two data sets of extreme awards with state court data from the National Center for State Courts (NCSC) for 1992, 1996, and 2001. One data set of extreme awards consists of punitive damages awards in excess of $100 million from 1985 through 2003, gathered by Hersch and Viscusi (H-V); the other includes the National Law Journal's (NLJ) annual reports of the 100 largest trial verdicts from 2001 to 2004. The integration of these data sets provides the most comprehensive picture of punitive damages in American civil trials to …

Go to article

A Financial Economic Theory Of Punitive Damages, Robert J. Rhee Jan 2012

A Financial Economic Theory Of Punitive Damages, Robert J. Rhee

Robert Rhee

This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather, it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement …

Go to article

Procedural Due Process And Predictable Punitive Damage Awards, Jill W. Lens Dec 2011

Procedural Due Process And Predictable Punitive Damage Awards, Jill W. Lens

Jill Wieber Lens

In Exxon Shipping Co. v. Baker, the Supreme Court’s most recent opinion on punitive damage awards, the Court declared that the real problem with punitive damage awards is their “stark unpredictability.” The Court abandoned all hope that common law jury instructions could produce predictable punitive damage awards. Instead, the Court suggested pegging punitive damage awards to compensatory damage awards. So far, analysis of the opinion has been minimal, likely due to the purported maritime law basis of the holding. 

Exxon should not be overlooked, however, as it signals a resurgence of procedural due process as a basis for challenging punitive …

Go to article

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French Dec 2011

Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French

Christopher C. French

Over the years, a myth has developed that insurance coverage is not available or allowed for intentional injuries or damage. This myth has two primary bases: one, the “fortuity” doctrine, which provides that insurance should only cover losses that happen by chance; and two, public policy, which allegedly disfavors allowing insurance for intentional injuries or damage. This article dispels that myth. Many types of liability insurance policies expressly cover intentional torts including trademark infringement, copyright infringement, invasion of privacy, defamation, disparagement, and improper employment practices such as discrimination. In addition, punitive damages, which typically are awarded for intentional misconduct, are …

Go to article

Discrimination Cases In The 2001 Term Of The Supreme Court (Symposium: The Fourteenth Annual Supreme Court Review), Eileen Kaufman Jul 2011

Discrimination Cases In The 2001 Term Of The Supreme Court (Symposium: The Fourteenth Annual Supreme Court Review), Eileen Kaufman

Eileen Kaufman

No abstract provided.

Go to article

Should Juries Be Informed That Municipality Will Indemnify Officer’S 1983 Liability For Constitutional Wrongdoing?, Martin A. Schwartz Jun 2011

Should Juries Be Informed That Municipality Will Indemnify Officer’S 1983 Liability For Constitutional Wrongdoing?, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Go to article

Section 1983 In The Second Circuit, Martin A. Schwartz Jun 2011

Section 1983 In The Second Circuit, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Go to article

Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz Jun 2011

Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz

Martin A. Schwartz

No abstract provided.

Go to article

Employment Discrimination: Recent Developments In The Supreme Court (The Supreme Court And Local Government Law: The 1994-1995 Term), Eileen Kaufman Mar 2011

Employment Discrimination: Recent Developments In The Supreme Court (The Supreme Court And Local Government Law: The 1994-1995 Term), Eileen Kaufman

Eileen Kaufman

No abstract provided.

Go to article

Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz Mar 2011

Punitive Damages--Developments In Section 1983 Cases, Eileen Kaufman, Martin A. Schwartz

Eileen Kaufman

No abstract provided.

Go to article

Punitive Damages And The Public Health Agenda, Jean Eggen Dec 2010

Punitive Damages And The Public Health Agenda, Jean Eggen

Jean M. Eggen

No abstract provided.

Go to article

Honest Confusion: The Purpose Of Compensatory Damages In Tort And Fraudulent Misrepresentation, Jill W. Lens Dec 2010

Honest Confusion: The Purpose Of Compensatory Damages In Tort And Fraudulent Misrepresentation, Jill W. Lens

Jill Wieber Lens

Tort law achieves its main purpose of compensating injured plaintiffs by awarding compensatory damages, which put the plaintiff in the same place as if the tort had not occurred. The amount of compensatory damages is necessarily connected to the plaintiff’s injury. For a long time, however, courts have broken that connection in fraudulent misrepresentation claims. The majority of courts hear “fraud” and award benefit-of-the-bargain damages, claiming that the plaintiff is not whole unless she receives compensation for the lost expectation allegedly created by the misrepresentation. Sometimes though, these same courts deny the plaintiff this compensation if the defendant’s conduct was …

Go to article

Punishing For The Injury: Tort Law’S Influence On The Constitutional Limitations Of Punitive Damage Awards, Jill W. Lens Dec 2010

Punishing For The Injury: Tort Law’S Influence On The Constitutional Limitations Of Punitive Damage Awards, Jill W. Lens

Jill Wieber Lens

The limitations on a punitive damage award depend on the conception of punitive damages. Is it a private law remedy, limited to resolving the dispute between the parties? Or is it a public law remedy, capable of addressing public harm and achieving public good? The Supreme Court has not wavered from public law ideas of punitive damages - that the damages serve the state’s interests and are similar to criminal punishments. At the same time, the Court has focused on the actual injury to the plaintiff in its holdings and prohibited punitive damages from punishing harm to nonparties, indicating that …

Go to article

Next Last