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Articles 1 - 6 of 6

Full-Text Articles in Law

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

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

UF Law Faculty Publications

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 …


To Perform Or Pay Damages, Gregory Klass Apr 2012

To Perform Or Pay Damages, Gregory Klass

Georgetown Law Faculty Publications and Other Works

In The Myth of Efficient Breach: New Defenses of the Expectation Interest, Daniel Markovits and Alan Schwartz argue that contractual promises between sophisticated parties are best interpreted as disjunctive promises to perform or pay damages. They further argue that this dual performance hypothesis answers moral critics of the expectation remedy. This comment makes three claims about Markovits and Schwartz's argument. First, although the dual performance hypothesis is supported by Markovits and Schwartz's instrumentalist model, they do not have a good argument that it is empirically correct -- that it is the best interpretation of what sophisticated parties actually intend. …


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

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

Faculty Scholarship

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 …


Debunking The Myth That Insurance Coverage Is Not Available Or Allowed For Intentional Torts Or Damages, Christopher French Jan 2012

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

Journal Articles

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 …


New Private Law Theory And Tort Law: A Comment, Keith N. Hylton Jan 2012

New Private Law Theory And Tort Law: A Comment, Keith N. Hylton

Faculty Scholarship

This comment was prepared for the Harvard Law Review symposium on “The New Private Law,” as a response to Benjamin Zipursky’s principal paper on torts. I find Zipursky’s reliance on Cardozo’s Palsgraf opinion as a foundational source of tort theory troubling, for two reasons. First, Cardozo fails to offer a consistent theoretical framework for tort law in his opinions, many of which are difficult to reconcile with one another. Second, Palsgraf should be understood as an effort by Cardozo to provide greater predictability, within a special class of proximate cause cases, by reallocating decision-making power from juries to judges. It …


Punitive Damages, Due Process, And Employment Discrimination, Joseph Seiner Jan 2012

Punitive Damages, Due Process, And Employment Discrimination, Joseph Seiner

Faculty Publications

The Supreme Court has failed to provide any substantive guidance on when punitive damages are appropriate in employment discrimination cases since it issued its seminal decision in Kolstad v. American Dental Ass'n over twelve years ago. The Court has recently expanded its punitive damages jurisprudence in the high-profile decisions of Philip Morris USA v. Williams and Exxon Shipping Co. v. Baker. While these cases dramatically altered the way exemplary relief is analyzed in civil cases, the extent to which these decisions apply in the workplace context remains unclear. Surprisingly, there has been almost no academic literature to date explaining how …