Law Commons^™

The Information-Forcing Dilemma In Damages Law, Tun-Jen Chiang

William & Mary Law Review

Courts assessing compensatory damages awards often lack adequate information to determine the value of a victim’s loss. A central reason for this problem, which the literature has thus far overlooked, is that courts face a dilemma when applying their standard information-forcing tools to the context of damages. Specifically, the standard method by which courts obtain information is through a burden of proof. In the context of damages, this means a rule requiring plaintiffs to prove the value of a loss. But courts will often face a situation where a plaintiff can clearly prove the existence of a loss, yet cannot …

Victimhood & Agency: How Taking Charge Takes Its Toll, Pam A. Mueller

Pepperdine Law Review

This Article addresses an unexplored tension in the civil justice system regarding victims. The goal of the civil system is to make victims whole. We can, as is most common, attempt to do this financially, or we can consider psychological research that suggests there may be other ways of restoring victims’ statuses. One of the most common nonfinancial solutions is to increase victim participation in the justice process. This is a solution that appeals to many victims and may benefit them psychologically. However, by increasing their participation, they may unknowingly trade off some of the benefits of victimhood. For instance, …

Products Liability And The Internet Of (Insecure) Things: Should Manufacturers Be Liable For Damage Caused By Hacked Devices?, Alan Butler

University of Michigan Journal of Law Reform

While the application of products liability to insecure software is a frequently-discussed concept in academic literature, many commentators have been skeptical of the viability of such claims for several reasons. First, the economic loss doctrine bars recovery for productivity loss, business disruption, and other common damages caused by software defects. Second, the application of design defects principles to software is difficult given the complexity of the devices and recent tort reform trends that have limited liability. Third, the intervening cause of damage from insecure software is typically a criminal or tortious act by a third party, so principles of causation …

In Defense Of The Restatement Of Liability Insurance Law, Tom Baker, Kyle D. Logue

Articles

The importance of liability law to the American system of justice, and to the US economy in general, are well known. Somewhat less well known, at least among non-lawyers, is the corresponding centrality of liability insurance. For most non-contractual legal claims for damages that are brought against individuals or firms, there is some form of liability insurance coverage. Such coverage, provided by state-regulated insurance companies, ranges from auto and homeowners’ policies (sold to consumers throughout the country) to commercial general liability policies (sold to businesses of all sizes) to professional liability policies of various sorts (including Directors and Officers coverage …

Betterment, Michael G. Pratt

Dalhousie Law Journal

When property is wrongfully damaged the cost of reinstatement is often the appropriate measure of damages. Reinstatement by repair or replacement is, however often possible only by replacing old materials with new materials that enhance the value of the property, generating "betterment." In such cases courts are faced with a choice whether to abide the betterment and award the cost of reinstatement, or reduce damages to offset the betterment. Examples of both responses to betterment are found in the cases, but no clear principle has been articulated by Canadian courts as to when one is to be preferred over the …

Show Me The Money: Determining A Celebrity’S Fair Market Value In A Right Of Publicity Action, Cody Reaves

University of Michigan Journal of Law Reform

As the power of celebrity continues to grow in the age of social media, so too does the price of using a celebrity’s name and likeness to promote a product. With the newfound ease of using Twitter, Facebook, and even print media to use a celebrity’s identity in conjunction with a product or company, right of publicity concerns arise. When a company uses a celebrity’s name and likeness without the celebrity’s authorization to market or sell a product, companies open themselves up to right of publicity suits. Many of these cases settle out of court. But when these cases do …

User "Safer Harbor" From Statutory Damages: Remixing The Doc's Ip Task Force White Paper, Tonya M. Evans

San Diego Law Review

In Safe Harbor for the Innocent Infringer in the Digital Age (Safe Harbor), I argued that certain classes of direct innocent infringers of copyright—namely, accidental and mea culpa infringers—should be afforded safe harbor from liability in light of current accepted online practices of users deemed essential for the proper functioning and progress of the Internet and digital technology. I offered a statutory amendment to Section 512 of the Copyright Act, one that would apply specifically to direct users and protect them in ways similar to the protections currently available to online service providers. In this Article, I approach the same …

Compensatory Damages Granted In Personal Injuries: Supplementing Islamic Jurisprudence With Elements Of Common Law, Majed Alshaibani

Maurer Theses and Dissertations

This dissertation discusses the types of compensatory damages, monetary and non-monetary losses, granted in Saudi Arabian personal injury cases. The main issue of this paper is to determine the missing types of monetary and nonmonetary losses when estimating compensation, thereby unjustly leaving injured parties without fair compensation. The problem of this study is that some victims do not get compensation personal injuries claims, such as loss of wages, lost earning capacity, and emotional distress. This is due to many reasons. One of the most obvious reasons is the absence of clearly written personal injuries statutes that cover all types of …

Rwu First Amendment Blog: David Logan's Blog: Moguls And The Media 1-2-2017, David A. Logan, Roger Williams University

Law School Blogs

No abstract provided.

Egg Donation: Whether A Woman Has A Property Right In Her Own Egg And How Donors Should Be Taxed, Richard Gano

Loyola of Los Angeles Law Review

No abstract provided.

Undercompensating For Discrimination: An Empirical Study Of General Damages Awards Issued By The Human Rights Tribunal Of Ontario, 2000-2015, Audra Ranalli, Bruce Ryder

Osgoode Legal Studies Research Paper Series

The authors present the results of a comprehensive quantitative analysis of general damages awards issued by the Human Rights Tribunal of Ontario from 2000 to 2015. From the results, the authors argue that general damages awards continue to be too low to reflect the importance of the equality rights protected by the Ontario Human Rights Code. While many expected that general damages awards would increase as a result of amendments to the Code that took effect in 2008, the data reveals that the range of the vast majority of general damages awards has remained relatively unchanged following the legislative reforms. …

Time Is Money: An Empirical Assessment Of Non-Economic Damages Arguments, Christopher Robertson

Faculty Scholarship

Non-economic damages (pain and suffering) are the most significant and variable components of liability. Our survey of 51 U.S. jurisdictions shows wide heterogeneity in whether attorneys may quantify damages as time-units of suffering (“per diem”) or demand a specific amount (“lump sum”). Either sort of large number could exploit an irrational anchoring effect.

We performed a realistic online, video-based experiment with 732 human subjects. We replicate prior work showing that large lump sum demands drive larger jury verdicts, but surprisingly find no effect of similarly-sized per diem anchors. We do find per diem effects on binary liability outcomes, and thus …

The Search For A Grand Unified Theory Of Tort Law., Scott Hershovitz

Reviews

Theorists like to do a lot with a little. And not just because simple theories seem more elegant: we deepen our understanding when we learn that disparate phenomena are linked together. In physics, for example, the theory of thermodynamics showed us the relationship between mechanics and heat. In economics, the theory of the firm showed us that, across industries that look nothing alike, a simple principle helps explain the organization of economic activity. Of course, there is no guarantee that the disparate phenomena we suspect are linked actually are. Particle physicists continue to search for a Grand Unified Theory, which …

Freedom Of Speech And The Criminal Law, Dan T. Coenen

Scholarly Works

Because the Free Speech Clause limits government power to enact penal statutes, it has a close relationship to American criminal law. This Article explores that relationship at a time when a fast-growing “decriminalization movement” has taken hold across the nation. At the heart of the Article is the idea that free speech law has developed in ways that have positioned the Supreme Court to use that law to impose significant new limits on the criminalization of speech. More particularly, this article claims that the Court has developed three distinct decision-making strategies for decriminalizing speech based on constitutional principles. The first …

Contracts, Causation, And Clarity, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Mutually Assured Protection Among Large U.S. Law Firms, Tom Baker, Rick Swedloff

All Faculty Scholarship

Top law firms are notoriously competitive, fighting for prime clients and matters. But some of the most elite firms are also deeply cooperative, willingly sharing key details about their finances and strategy with their rivals. More surprisingly, they pay handsomely to do so. Nearly half of the AmLaw 100 and 200 belong to mutual insurance organizations that require member firms to provide capital; partner time; and important information about their governance, balance sheets, risk management, strategic plans, and malpractice liability. To answer why these firms do so when there are commercial insurers willing to provide coverage with fewer burdens, we …

Dignity Takings, Dignity Restoration: A Tort Law Perspective, Valerie P. Hans

Cornell Law Faculty Publications

Money damages can operate to restore the dignity of a person who has been injured in tort or deprived of property. A financial award or settlement conveys an acknowledgment of the wrong and signals the reestablishment of equity between defendant and plaintiff. Whether the award is seen as adequate to fully restore dignity is influenced by context, especially comparison cases. And financial compensation directly provided by the defendant holds greater promise for dignity restoration.

Buying Monopoly: Antitrust Limits On Damages For Externally Acquired Patents, Erik N. Hovenkamp, Herbert J. Hovenkamp

All Faculty Scholarship

The “monopoly” authorized by the Patent Act refers to the exclusionary power of individual patents. That is not the same thing as the acquisition of individual patent rights into portfolios that dominate a market, something that the Patent Act never justifies and that the antitrust laws rightfully prohibit.

Most patent assignments are procompetitive and serve to promote the efficient commercialization of patented inventions. However, patent acquisitions may also be used to combine substitute patents from external patentees, giving the acquirer an unearned monopoly position in the relevant technology market. A producer requires only one of the substitutes, but by acquiring …

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 …

The Concurrent Liability In Contract And Tort Under U.S. And English Law: To What Extent Plaintiff Is Entitled To Recover For Damages Under Tort Claim?, Phutchaya Numngern

Maurer Theses and Dissertations

Both U.S. and English courts has confronted with the concurrent situations mostly occurring in the cases where 1) the plaintiff asks for the recovery in tort claim despite the existence of contractual relationship or 2) the plaintiff asserts contract claim but the defendant contends that the issue at bar should be sound in tort rather than in contract. After studying all relevant cases and academic writings, this thesis found that both U.S. and English systems generally recognize concurrent tort claim as an elective right. The courts have attempted to provide the justified rationales either to allow the plaintiffs tort claim …

The Lost Volume Seller, R.I.P., Victor P. Goldberg

Faculty Scholarship

If the buyer breaches a sales contract, and if the seller can be characterized as a lost volume seller, courts and commentators have argued that the seller should be made whole by compensation for its lost profits. This paper argues that framing the problem in this way leads to an absurd result. The buyer has a termination option and the remedy should be the implicit option price. The lost profit remedy sets a price on that option, a price that bears no relation to reality. Examination of the case law suggests three conclusions: (a) the remedy often sets an excessive …

Contents

Georgia Journal of International & Comparative Law

No abstract provided.

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 …

The Duty Of Good Faith Taken To A New Level:An Analysis Of Disloyal Behavior, Thiago Luís Sombra

Journal of Civil Law Studies

By focusing on improving the role of certain mechanisms for controlling private autonomy under a crisis of liberal values, contract law has reached an objective and straight dimension. The prohibition of disloyal or inconsistent behavior, also known as venire contra factum proprium in Roman Law, constitutes one of the concepts that is renowned for protecting the trust relationship. The prohibition of disloyal behavior lies in avoiding contradictory behaviors regarding previous manifestations of will that are based on good faith and that can cause damages. This article aims to challenge the main reason why disloyal behavior should be limited by good …

A Day In Court For Data Breach Plaintiffs: Preserving Standing Based On Increased Risk Of Identity Theft After Clapper V. Amnesty International Usa, Thomas Martecchini

Michigan Law Review

Following a data breach, consumers suffer an increased risk of identity theft because of the exposure of their personal information. Limited protection by data-breach statutes has made it difficult for consumers to seek compensation for these injuries and penalize the companies that fail to protect their information, leading consumers to bring common law claims in court. Yet courts have disagreed about whether an increased risk of identity theft qualifies as an injury-in-fact under Article III standing principles: the Seventh and Ninth Circuits have approved of increased risk standing, while the Third Circuit has rejected it. The Supreme Court has further …

Material Contribution To Risk In The Canadian Law Of Toxic Torts, Lynda M. Collins

Chicago-Kent Law Review

Causation is acknowledged as the single biggest hurdle to recovery for plaintiffs in toxic tort actions in Canada (and elsewhere). Scientific uncertainty involving questions of both generic and specific causation has frequently precluded recovery for plaintiffs even where defendants have negligently exposed them to toxic risk. Three types of uncertainty have been identified: plaintiff indeterminacy (where we know that the defendant has harmed some proportion of a particular population but no individual can prove causation); defendant indeterminacy (where we know that a group of defendants has harmed a particular plaintiff or plaintiffs but each can escape liability by pointing the …

Making A Buck While Making A Difference, Alphonse A. Gerhardstein

Michigan Journal of Race and Law

It is not right for children to die before their parents. It is not right for peaceful, unarmed citizens to die at the hands of the police. In my civil rights practice, I have met many mothers, fathers, and family members who are struggling to recover after a law enforcement officer caused the death of their loved one. Sure, they want fair compensation. But money does little to reduce their loss or make the grief more bearable. They often want to do something that will ensure that their loved one did not die in vain. They want to prevent other …

Equalizing The Threat Of Noncompete Agreements: Solutions Beyond Louisiana’S Tangled Web Of Nullity, Kristen Amond

Louisiana Law Review

No abstract provided.

Class Warfare: Why Antitrust Class Actions Are Essential For Compensation And Deterrence, Robert H. Lande

All Faculty Scholarship

Recent empirical studies demonstrate five reasons why antitrust class action cases are essential: (1) class actions are virtually the only way for most victims of antitrust violations to receive compensation; (2) most successful class actions involve collusion that was anticompetitive; (3) class victims’ compensation has been modest, generally less than their damages; (4) class actions deter significant amounts of collusion and other anticompetitive behavior; and (5) anticompetitive collusion is underdeterred, a problem that would be exacerbated without class actions. Unfortunately, a number of court decisions have undermined class action cases, thus preventing much effective and important antitrust enforcement.

Death To Semelhago!, Bruce Ziff

Dalhousie Law Journal

In the 1996 decision of the Supreme Court of Canada in Semelhago v. Paramadevan, Justice John Sopinka stated that it is no longer appropriate to assume that specific performance will issue as a matter of course to enforce a contract for the sale of land. Before performance will be ordered, it must be proven (and not assumed) that common law damages for breach of contract will not suffice to do justice. In this article, Semel hago and the case law generated in its aftermath will be reviewed, and the policy arguments pertaining to the current law addressed. In short, it …