Law Commons^™

Closing The Door On Human Dignity: How The Supreme Court Blocked The Path To Relief For Victims Of Title Ix Discrimination, Bailey Wylie

The Scholar: St. Mary's Law Review on Race and Social Justice

This comment exposes the far-reaching consequences of Cummings v. Premier Rehab Keller and scrutinizes the Supreme Court’s reliance on contract law principles to deny victims of discrimination recovery of non-economic damages.

For almost 50 years, courts have awarded emotional distress damages to victims of discrimination. Consequently, the Court’s lack of notice argument within Cummings falls flat through a cursory analysis of precedent. In the context of Title IX discrimination, school districts are undeniably aware of the possibility of sexual harassment liability at the time they accept federal funding. Mandated Codes of Conduct explicitly prohibit sexual harassment and outline ramifications for …

Bringing Predictability To The Chaos Of Punitive Damages, W. Kip Viscusi, Benjamin J. Mcmichael

Vanderbilt Law School Faculty Publications

Punitive damages remain unique in the American legal system. Awarded in the civil context with none of the protections offered in criminal law, courts levy punitive damages to punish and deter. The Supreme Court of the United States has clearly stated that courts may only seek to achieve these two goals when imposing punitive damages. A closer reading of the Court's punitive damages jurisprudence, however, reveals another goal that has largely been ignored: predictability. Unlike punishment and deterrence, predictability is not a purpose for which to award punitive damages. Instead, the Court requires that, when awarded, the level of punitive …

Precise Punishment: Why Precise Punitive Damage Requests Result In Higher Awards Than Round Requests, Michael Conklin

Michigan Business & Entrepreneurial Law Review

Imagine a setting where someone asks two people what the temperature is outside. The first person says it is 80 °F, while the second person says it is 78.7 °F. Research regarding precise versus round cognitive anchoring suggests that the second person is more likely to be believed. This is because it is human nature to assume that if someone gives a precise answer, he must have good reason for doing so. This principle remains constant in a variety of settings, including used car negotiations, eBay transactions, and estimating the field goal percentage of a basketball player.

This Article reports …

Transnational Punitive And Compensatory Damages: Villains Or Role Models?, Attilio M. Costabel

St. Thomas Law Review

This Article concludes that the purpose and the scale of the American punitive damages and compensatory damages alike should not be disparaged as excesses of a society spoiled by exaggerated wealth; instead, they should be seen as a model for valuing the universal integrity of human life, while not depending on technicalities of international forum shopping.

The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

San Diego Law Review

This article maintains that, under defined circumstances, a judge should be able to grant an injunction that forbids the defendant’s proved defamation. It analyzes the common law of defamation, the constitutional prior restraint doctrine, the constitutional protection for defamation that stems from New York Times v. Sullivan, and injunctions and their enforcement.

In Near v. Minnesota, the Supreme Court expanded protection for expression by adding an injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgment for defamation. An injunction that forbids the defendant’s …

Hazing Laws In Louisiana: Criminal Penalty Masquerading Under The Guise Of Punitive Damages, Brittney Esie

Journal of Civil Law Studies

No abstract provided.

The Enforcement Of Punitive Damages Awards Between United States And Europe: An Introduction For U.S. Practitioners, Maria Veronica Saladino

The International Lawyer

This article’s objective is to introduce U.S.-based practitioners to European civil-law perspectives on whether U.S. punitive damages awards are enforceable in their jurisdictions. After a brief review concerning the birth of punitive damages within common law, valuable to better understand their cultural and legal significance, this article will outline how the prominent European jurisdictions — France, Germany, Italy, Spain, and Switzerland — have dealt with the enforcement of U.S. punitive damages awards. Through each jurisdiction’s policy principles and relevant law, this article aims to afford U.S.-based practitioners initial tips and litigation strategies about how to maximize their chances of enforcing …

United States Response To Questionnaire Concerning Copyright In Action: International Perspectives On Remedies, Philippa Loengard, Julia Ambros, Andrew Elliott, Daniel Lee

Kernochan Center for Law, Media, and the Arts

ALAI-USA is the U.S. branch of ALAI (Association Littèraire et Artistique Internationale). ALAI-USA was started in the 1980's by the late Professor Melville B. Nimmer, and was later expanded by Professor John M. Kernochan.

Property Law And Civil Procedure--Establishing Precedent For Afha Enforcement And Revising Arkansas's Law On Punitive Damages. Watkins V. Turner, 2016 Ark. App. 158, 2016 Wl 903765, Tasha L. Strickland

University of Arkansas at Little Rock Law Review

No abstract provided.

Punishment But Not A Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Paul A. Hoversten

Michigan Law Review

It is a well-established principle that no court applies the penal laws of another sovereign. But what exactly is a penal law? According to Judge Cardozo, a penal law effects “vindication of the public justice” rather than “reparation to one aggrieved.” Although courts have historically treated punitive damages as a purely civil remedy, that attitude has shifted over time. Modern American punitive damages serve not to compensate the plaintiff but to punish the defendant on behalf of the whole community. Therefore, when courts rely on foreign substantive law to impose punitive damages, they arguably violate the well-established principle that no …

Institutional Liability For Employees’ Intentional Torts: Vicarious Liability As A Quasi-Substitute For Punitive Damages, Catherine M. Sharkey

Valparaiso University Law Review

No abstract provided.

An Undetectable Constitutional Violation, Jill W. Lens

Jill Wieber Lens

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

Jill Wieber Lens

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

Erwin Chemerinsky

No abstract provided.

Punitive Damages Revisited: A Statistical Analysis Of How Federal Circuit Courts Decide The Constitutionality Of Such Awards, Hironari Momioka

Cleveland State Law Review

Using data from punitive damages decisions of U.S. federal circuit courts from 2004 to 2012, this paper attempts to establish empirically the following: (1) there is no apparent statistical difference between the levels of jury and judge awards; (2) U.S. Supreme Court decisions such as Philip Morris (2007) or Exxon (2008) do not actually or substantially affect the level of punitive damage awards; (3) with regard to the cases involving remittitur, or reduction of awards, the Exxon decision did not radically affect the decreasing ratio of punitive to compensatory damage awards; (4) as the levels of compensatory awards go up, …

Defective Punitive Damage Awards, Jill W. Lens

Jill Wieber Lens

Civil Law Pulsations Along The Latin American Periphery, Ángel R. Oquendo

University of Miami Inter-American Law Review

The civil law system shows its true face as it travels from the Continental European core to the Latin American periphery. Many of the principal institutions have found a home and thrived in the new and radically different environment. One can best study them there by contemplating how they have preserved some of their most basic features despite having transformed themselves into something else.

The notion of the civil law tradition and that of codification have themselves undergone this dialectic of transformation and preservation. So have the traditional approach to contractual interpretation and to third-party agreements and the common proscriptions …

Shrinkage Estimation In The Adjudication Of Civil Damage Claims, Hillel J. Bavli, Yang Chen

Faculty Journal Articles and Book Chapters

Recent papers have highlighted the use of claim aggregation as a tool for reducing the unpredictability of legal outcomes. Specifically, it has been argued that sampling methods can be used in the class action context, and comparable-case guidance – information regarding awards in comparable cases as guidance for determining damage awards – can be used in the individual-claim context, to reduce variability and improve the accuracy of awards. In this paper, we examine a third form of claim aggregation based on a statistical method called “shrinkage estimation,” which is used to aggregate information and thereby improve estimation. We examine the …

Improving The Effectiveness Of South Korean Product Liability Including Punitive Damages: A Comparative Analysis Between The United States And South Korea, Minsung Kim

Maurer Theses and Dissertations

As South Korean Product Liability Act was revised to adopt the U.S. doctrine of punitive damages, there is a theoretical necessity of reviewing the relations between the theory of product liability and the U.S. doctrine of punitive damages. The theory of product liability is closely related to the strict liability but the doctrine of punitive damages has been developed to regulate malicious misconducts. Due to the different basic concepts, the strict liability and malicious misconducts, the theory of product liability might not include the doctrine of punitive damages. In addition to the compatibility issue, functions of the punitive damages are …

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 …

It Is Time For Washington State To Take A Stand Against Holmes's Bad Man: The Value Of Punitive Damages In Deterring Big Business And International Tortfeasors, Jackson Pahlke

University of Michigan Journal of Law Reform

In Washington State, tortfeasors get a break when they commit intentional torts. Instead of receiving more punishment for their planned bad act, intentional tortfeasors are punished as if they committed a mere accident. The trend does not stop in Washington State—nationwide, punitive damage legislation inadequately deters intentional wrongdoers through caps and outright bans on punitive damages. Despite Washington State’s one hundred and twenty-five year ban on punitive damages, it is in a unique and powerful position to change the way courts across the country deal with intentional tortfeasors. Since Washington has never had a comprehensive punitive damages framework, and has …

Digital Photography And The Internet, Rethinking Privacy Law, Jim Barr Coleman

Journal of Intellectual Property Law

No abstract provided.

Why Don’T Punitive Damages Punish Or Deter? Beyond The Constitution Toward An Economic Solution, Paige Griffith

Montana Law Review

No abstract provided.

Adding Insult To Death: Why Punitive Damages Should Not Be Imposed Against A Deceased Tortfeasor's Estate In Ohio, Alec A. Beech

Akron Law Review

A majority of jurisdictions in the United States have determined, either statutorily or judicially, that punitive damages cannot be imposed against deceased tortfeasors. However, a recent Ohio appellate court held to the contrary. In Whetstone v. Binner, the Ohio Fifth District Court of Appeals adopted the minority view when it held that punitive damages could be imposed against a decedent’s estate. This Comment takes the position that Whetstone was incorrectly decided. Specifically, this Comment argues that the longstanding purposes of punitive damages are not furthered when such damages are imposed against estates and that Ohio law supports this conclusion.

The Latest Word From The Supreme Court On Punitive Damages, Leon D. Lazer

Touro Law Review

No abstract provided.

The Roots Of Punitive Damages At Common Law: A Longer History, Jason Taliadoros

Cleveland State Law Review

This Article aims to revisit the historical development of the doctrine of exemplary or punitive damages. Punitive damages are anomalous in that they lie in both tort and crime, a matter that has led to much criticism by modern commentators. Yet, a definitive history of punitive damages does not exist to explain this anomaly. The main contribution of this Article, then, is to begin such a history by way of a meta-narrative. It identifies and links the historically significant moments that led to punitive damages, beginning with the background period of classical Roman law, its renewed reception in Western Europe …

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

Doug Rendleman

No abstract provided.

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

Doug Rendleman

No abstract provided.

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

Doug Rendleman

No abstract provided.

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

Martin A. Schwartz

No abstract provided.