Law Commons^™

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 …

Tortious Liability For Bad Faith Refusal To Pay, Jeffrey Schobert

Akron Law Review

In Hoskins v. Aetna Life Ins. Co., the Ohio Supreme Court imposed on insurers a good faith duty in any refusal to pay claims made by their insured. Its decision placed Ohio among a growing number of jurisdictions that have recognized this good faith duty. The court adopted its rationale by relying heavily on existing insurance case law in the refusal-to-settle third-party claims type actions. The court defined the standard of good faith in terms of a reasonable justification by the insurer in refusing to pay a claim "because it believed there was no coverage of the claim." The …

Uninsured Motorist Insurance Now Covers Punitive Award - Hutchinson V. J.C. Penny Casualty Insurance Company, Dale Katzenmeyer

Akron Law Review

A split of authority exists among the few states which have decided the issue In jurisdictions permitting recovery of punitive damages, uninsured motorist coverage is intended to place the insurer in the shoes of the uninsured tortfeasor. Since the insurer stands in the shoes of the tortfeasor, and since punitive damages could be covered if the tortfeasor had his own insurance, it is illogical to deny the victim punitive damages simply because the tortfeasor is uninsured. Other jurisdictions believe that punitive damages should not be awarded since that award would not operate to punish the tortfeasor and would therefore violate …

The Constutionality Of Punitive Damages: Pacific Mutual Life Insurance Company V. Cleopatra Haslip, Thomas P. Mannion

Akron Law Review

This Note examines the history of the constitutional challenges to the doctrine of punitive damages. Next, this Note explores the Supreme Court's decision in Haslip. Finally, this Note examines the ramifications of the Haslip decision.

Will Employment Discrimination Class Actions Survive?, Melissa Hart

Akron Law Review

This paper will argue that the changes wrought by the Civil Rights Act of 1991 do not in fact pose a barrier to resolution of employment discrimination claims through class litigation. The addition of compensatory and punitive damages and a jury-trial right in the Civil Rights Act of 1991 may increase the level of scrutiny and perhaps the level of judicial involvement necessary in an employment discrimination class action. But they do not render such a class action either impermissible under Rule 23 or violative of due process or Seventh Amendment jury trial rights. Courts and commentators who insist that …

Due Process Limitations On Punitive Damages: Why State Farm Won't Be The Last Word, Laura J. Hines

Akron Law Review

Part I of this article will trace the development of the evolving principles and requirements the Court is imposing on state awards of punitive damages, identifying notable undercurrents within the Court regarding this new and expanding application of the Due Process Clause. Part II will present a detailed analysis of State Farm Mutual Automobile Insurance Co. v. Campbell, which represents the Court’s most ambitious attempt yet to provide guidance to states on how to approach the imposition of punitive damages and how to assess the appropriate size thereof. Finally, Part III of this article will examine recent lower court cases …

What Makes The Collateral Source Rule Different?, Michael B. Kelly

Akron Law Review

Tort liability forces parties engaged in risk-producing activities to internalize the costs that the activities impose on those adversely affected by the risks they create. Rational parties should take precautions to reduce those risks rather than pay the costs the risks cause – at least up to the point that further reductions would cost more than the harms they would prevent. How could reforms that reduce liability, and thus force parties to internalize a lower portion of the costs suffered as a result of the risks they create, produce a decrease in fatal accidents? Part I below briefly considers this …

A Cap On The Defendant's Appeal Bond?: Punitive Damages Tort Reform, Doug Rendleman

Akron Law Review

This article begins in Part II with background about appeal bonds and the way their amounts were set before tort reform. Since the defendant’s cost of an appeal bond is an expense and, perhaps, an impediment to its appeal, the defendant will seek ways to surmount, reduce, or avoid the impediment. Part II then uses Pennzoil v. Texaco to illustrate two of defendants’ strategies for staying collection on a judgment pending review in lieu of posting a huge appeal bond—obtain a federal injunction and file for bankruptcy. This article shows why neither strategy is sufficient: the federal court’s abstention doctrines …

Statutory Caps And Judicial Review Of Damages, Colleen P. Murphy

Akron Law Review

In this article, I examine two procedural questions arising from the use of statutory caps. First, how should a statutory cap affect judicial review of awards for possible excessiveness? Second, when a legislature has imposed a total cap on a combination of different types of damages (such as on the total of punitive and compensatory damages or on the total of economic and noneconomic damages), how should courts allocate multiple awards to conform to the cap?...With respect to multiple awards that exceed a total cap on different types of damages, I suggest that the appropriate way to conform multiple awards …

The Struggle Over Tort Reform And The Overlooked Legacy Of The Progressives, Rachel M. Janutis

Akron Law Review

In attempting to distinguish the 1950s and 1960s tort expansion from the current tort retraction, the scholarly account depicts the tort expansion as primarily a judicial movement led by legal academics devoid of any self-interest. In contrast, this account holds out the current tort retraction as a mainly political movement driven by the economic self-interest of its proponents...First, contemporary tort reform, rather than solely being a reaction to tort expansion in the 1950s and 1960s, is part of a continuing debate between corporate, professional and insurance interests on one side and consumer interests and the trial bar on the other …

Exxon Shipping Co. V. Baker: Why The Supreme Court Missed The Boat On Punitive Damages, Maria C. Klutinoty

Akron Law Review

This Note will touch upon the numerous constitutional challenges the doctrine of punitive damages has faced, and will discuss noteworthy Supreme Court cases preceding Exxon Shipping Co. v. Baker at length, including BMW of North America, Inc. v. Gore, 5 as well as State Farm Mutual Automobile Insurance Co. v. Campbell. 6 This Note argues against the imposition of a strict one-to-one maximum ratio of punitiveto-compensatory damages. In light of the varying application of Exxon outside of the maritime context, such an imposition defeats the purpose of punitive damages by diluting their potential for deterrence, and it needlessly complicates the …

Statutory Caps On Punitive Damages: Are They Infringing On Your Rights?, Lynsey Russell

Missouri Law Review

The argument surrounding statutory caps on punitive damages seems to be black and white – either for or against. However, this may not be the case, as a closer evaluation of Missouri history and the instant decision suggest that the issue is more nuanced. First, Part II of this Note summarizes the facts, procedural posture, and holding of Lewellen v. Franklin. Second, Part III explores the legal background of punitive damages and the limitations that have historically been imposed on them. Next, Part IV describes the majority opinion in Lewellen and examines the Supreme Court of Missouri’s rationale. Lastly, Part …

Pricing Lives For Corporate Risk Decisions, W. Kip Viscusi

Vanderbilt Law Review

The 2014 GM ignition-switch recall highlighted the inadequacies of the company's safety culture and the shortcomings of regulatory sanctions. The company's inattention to systematic thinking about product safety can be traced to the hostile treatment of corporate risk analyses by the courts. This Article proposes that companies should place a greater value on lives at risk than they have in previous risk analyses and that they should receive legal protections for product risk analyses. Companies' valuations of fatality risks and regulatory penalties have priced lives too low. The guidance provided by the value of a statistical life, which is currently …

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.

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 …

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 …

International Mass Tort Litigation: Forum Non Conveniens And The Adequate Alternative Forum In Light Of The Bhopal Disaster, Stephen L. Cummings

Georgia Journal of International & Comparative Law

No abstract provided.

Jay Ordan, Order On Defendants' Motion For Summary Judgment, Elizabeth E. Long

Georgia Business Court Opinions

No abstract provided.

Toward A Fundamental Right To Evade Law? Protecting The Rule Of Unequal Racial And Economic Power In Shelby County And State Farm, Martha T. Mccluskey

Journal Articles

To rationalize its ruling on voting rights, Shelby County, Alabama v. Holder develops a constitutional vision of passivity in the face of institutionalized power to violate the law. This essay compares Shelby County to State Farm Mutual Automobile v. Campbell, a 2003 Supreme Court ruling involving a different subject area, state punitive damage awards. In both, the Court asserts newly articulated judicial power to override other branches, not to protect human rights, but rather to expand institutionalized immunity from those rights. On the surface, the Court’s rejection of state sovereignty in State Farm (protecting multistate corporations from high punitive damages) …

False Arrest, Malicious Prosecution, And Abuse Of Process In § 1983 Litigation, John Williams

Touro Law Review

No abstract provided.

The Road From Nowhere? Punitive Damage Ratios After Bmw V. Gore And State Farm Mutual Automobile Insurance Co. V. Campbell, Andrew C.W. Lund

Touro Law Review

No abstract provided.

Summary Of D.R. Horton V. Betsinger, 130 Nev. Adv. Op. 84, Gil Kahn

Nevada Supreme Court Summaries

The Court determined that even when a case is remanded only in order for a trier of fact to determine the amount of punitive damages, NRS 42.005(3) requires that same trier of fact to first determine whether such damages are warranted.

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.

Changing Tides: The Introduction Of Punitive Damages Into The French Legal System, Matthew K.J. Parker

Georgia Journal of International & Comparative Law

No abstract provided.

Invading The Realm Of The Dead: Exploring The (Im)Propriety Of Punitive Damage Awards Against Estates, Emily Himes Iversen

University of Michigan Journal of Law Reform

Punitive damages are traditionally understood, at least in part, as damages designed to punish. It should therefore come as no surprise that, in the majority of states that have decided the issue, courts have chosen not to allow punitive damage awards against the estates of deceased tortfeasors. After all, the tortfeasor can no longer be punished (at least by tort awards). Nonetheless, punitive damages can also serve other purposes, such as deterrence. This Note argues that Michigan, a state which has not yet taken a stance, should adopt the minority position that allows punitive damages to be awarded against estates. …

Punitive Damages, Chinese Tort Law, And The American Experience, Vincent R. Johnson

Faculty Articles

In a country such as China, with abundant consumer products and the inevitability of product defects, claims for punitive damages are sure to arise under Article 47 of the new Chinese Tort Law. Article 47 provides that “(w)hereany producer or seller knowingly produces or sells defective products, causing death or serious damage to the health of others, the injured party may request appropriate punitive damages.” As Chinese jurists and scholars interpret Article 47, they may wish to consider whether lessons can be drawn from the American experience. During the past two decades, few areas of American law have changed more …

The Decline Of Civil Jury Trials: A Positive Development, Myth, Or The End Of Justice As We Now Know It?, Xavier Rodriguez

St. Mary's Law Journal

Jury participation is helpful in many respects. It fosters an understanding of the third branch of government and the workings of the judicial system. It offers the opportunity for individuals to serve in a unique role: neutral factfinder. Moreover, in an age of declining voter participation, jury service provides individuals with the opportunity to directly participate in our governmental structure. Despite these positive attributes, jury trials as we knew them are on the decline. That may or may not be problematic, depending on what types of cases are being impacted. Where parties have reached a voluntary and informed settlement on …

Assessing The Insurance Role Of Tort Liability After Calabresi, W. Kip Viscusi, Joni Hersch

Vanderbilt Law School Faculty Publications

Calabresi’s theory of tort liability (1961) as a risk distribution mechanism established insurance as an objective of tort liability. Calabresi’s risk-spreading concept of tort has provided the impetus for much of the subsequent development of tort liability doctrine, including risk-utility analysis and strict liability. Calabresi’s analysis remains a powerful basis for modern tort liability. However, high transactions costs, correlated risks, catastrophic losses, mass toxic torts, shifts in liability rules over time, noneconomic damages, and punitive damages affect the functioning of tort liability as an insurance mechanism. Despite some limitations of tort liability as insurance, tort compensation serves both a compensatory …

Surprisingly Punitive Damages, Bert I. Huang

Faculty Scholarship

Damages can add up to super-punitive amounts in unintended ways. To take a textbook example: The Defendant has caused an industrial accident or other mass tort. Plaintiff 1 sues, winning punitive damages based on the reprehensibility of that original act. Plaintiff 2 also sues – and also wins punitive damages on the same grounds. So do Plaintiff 3, Plaintiff 4, and so forth. If each of these punitive awards is directed at the same general badness of that original act, then these punishments are redundant. When such redundancy occurs, even damages that are meant to be punitive can reach surprisingly …

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

Jill Wieber Lens