Legal Remedies Commons^™

The Indulgence Of Reasonable Presumptions: Federal Court Contractual Civil Jury Trial Waivers, Joel Andersen

Michigan Law Review

Large institutions such as banks, franchisers, international companies, and lessors distrust juries' ability to properly resolve disputes and award reasonable damages. As a result, these and other actors have attempted to limit juries' potential influence on the contracts to which they are parties. They have done so through contractual jury trial waiver clauses in these agreements. The Seventh Amendment to the Constitution guarantees the jury trial right. Whether the right is determined to exist in an individual instance is a matter of federal common law, which merely preserves the jury trial right as it existed when the Amendment was adopted …

Minnesota And The American Rule: The Recoverability Of Attorneys’ Fees Following In Re Silicone Implant Insurance Coverage Litigation, John M. Bjorkman

William Mitchell Law Review

In the United States, a successful litigant is generally not entitled to recover attorneys' fees from the opposing party absent specific statutory or contractual authorization. This basic principle is commonly referred to as the American Rule. Minnesota recognized and adopted the American Rule roughly 125 years ago. A limited number of exceptions to this longstanding rule exist, but Minnesota courts have generally been reluctant to expand or add to these exceptions. In Minnesota, an exception to the American Rule exists for fees incurred in a declaratory action to establish insurance coverage but only if the insurer has breached its duty …

A Taxing Settlement, Hanoch Dagan, James J. White

Articles

The following essay is based on the talk "Government, Citizens, and Injurious Industries: A Case Study of the Tobacco Litigation," delivered by Hanoch Dagan last May to the Detroit Chapter of the International Association of Jewish Lawyers and Jurists, and on the article "Governments, Citizens, and Injurious Industries," by Dagan and James J. White, '62, which appeared in 75.2 New York University Law Review 254-428 (May 2000). The authors hold conflicting view on the underlying issue of this topic: tobacco company product liability. Professor Dagan holds the position that tobacco companies are liable for harm done by their products; Professor …

Clear Sailing Agreements: A Special Form Of Collusion In Class Action Settlements, William D. Henderson

Articles by Maurer Faculty

A clear sailing agreement (or clause) is a compromise in which a class action defendant agrees not to contest the class lawyer's petition for attorneys' fees. This Article argues that clear sailing provisions often facilitate collusive settlements in cases involving non-pecuniary relief or claims-made common funds that return all unclaimed monies to the defendant. Because these types of settlements present difficult valuation problems, trial courts lack a clear benchmark for calculating attorneys' fees. Defendants and class can exploit this uncertainty by presenting an inflated settlement value to the court (to justify higher attorneys' fees) while simultaneously reducing the true cost …

Misclassifying Monetary Restitution, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

Asbestos Litigation Gone Mad: Exposure-Based Recovery For Increased Risk, Mental Distress, And Medical Monitoring, James A. Henderson Jr., Aaron Twerski

Cornell Law Faculty Publications

No abstract provided.

Juries, Judges, And Punitive Damages: An Empirical Study, Theodore Eisenberg, Neil Lafountain, Brian Ostrom, David Rottman, Martin T. Wells

Cornell Law Faculty Publications

This Article, the first broad-based analysis of punitive damages in judge-tried cases, compares judge and jury performance in awarding punitive damages and in setting their levels. Data covering one year of judge and jury trial outcomes from forty-five of the nation's largest counties yield no substantial evidence that judges and juries differ in the rate at which they award punitive damages or in the central relation between the size of punitive awards and compensatory awards. The relation between punitive and compensatory awards in jury trials is strikingly similar to the relation in judge trials. For a given level of compensatory …

Should Government Be Allowed To Recover The Costs Of Public Services From Tortfeasors?: Tort Subsidies, The Limits Of Loss Spreading, And The Free Public Services Doctrine, Timothy D. Lytton

Faculty Publications By Year

The free public services doctrine (also known as the municipal cost recovery rule) states that a government entity may not recover from a tortfeasor the costs of public services occasioned by the tortfeasor's wrongdoing. This article traces the history of the doctrine and argues for its elimination. The article criticizes case law supporting the doctrine and raises objections based on fairness, efficiency, and institutional concerns about the proper limits of judicial policy making. The article discusses the implications of eliminating the doctrine for tobacco litigation, gun litigation, and tort reform.

The Secondary Effects Of Environmental Justice Litigation: The Case Of West Dallas Coalition For Environmental Justice V. Epa, Gregg P. Macey, Lawrence E. Susskind

Faculty Scholarship

No abstract provided.

Damage Awards In Perspective: Behind The Headline-Grabbing Awards In Exxon Valdez And Engle, Theodore Eisenberg

Cornell Law Faculty Publications

Large punitive damages awards in tobacco litigation, the Exxon Valdez oil spill case, and other cases dominate the public perceptions about damages. These large awards and the mass of compensatory awards can be best understood in relation to other awards. In fact, total awards in tried contract cases have risen faster than tort awards. In the highly visible world of large punitive damages awards, the Exxon Valdez award fits well within the traditional pattern of punitive awards. The largest punitive award, that against the tobacco industry in Engle, is best understood against the background of the tobacco industry's national …

Judgement As A Matter Of Law On Punitive Damages, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

What's Half A Lung Worth? Civil Jurors' Accounts Of Their Award Decision Making, Nicole L. Mott, Valerie P. Hans, Lindsay Simpson

Cornell Law Faculty Publications

Jury awards are often criticized as being arbitrary and excessive. This paper speaks to that controversy, reporting data from interviews with civil jurors' accounts of the strategies that juries use and the factors that they consider in arriving at a collective award. Jurors reported difficulty in deciding on awards, describing it as "the hardest part" of jury service and were surprised the court did not provide more guidance to them. Relatively few jurors entered the jury deliberation room with a specified award figure in mind. Once in the deliberation room, however, they reported discussing a variety of relevant factors such …

Whipped By Whiplash? The Challenges Of Jury Communication In Lawsuits Involving Connective Tissue Injury, Valerie P. Hans, Nicole Vadino

Cornell Law Faculty Publications

No abstract provided.

Fashionable Genetic Explanations In The Courtroom: Litigating Personal Injuries Based On Genetic Risk, Jennifer Wriggins

Faculty Publications

New developments in molecular genetics hold much promise for society. Gene therapy research is underway with the aim of helping to fight, and perhaps even eliminate some diseases. DNA data can be used as evidence to help free innocent people and put guilty ones in jail. Agricultural biotechnology can make crops and pesticides more productive. And cloning may offer exciting potential. There is little doubt that further· developments in the areas of genetics and biotechnology will change our lives in unanticipated ways.

Despite the potential benefits to society, there exist valid and serious I concerns about the potential for misuse …

The Scope Of 'High Crimes And Misdemeanors' After The Impeachment Of President Clinton, Neil J. Kinkopf

Faculty Publications By Year

Constitutional theorists have begun focusing a great deal of attention on constitutionalism outside the judiciary. As Professor Neal Katyal points out in his insightful paper, the impeachment and trial of President Clinton provide an outstanding opportunity to reflect upon the practice of constitutionalism outside the courts. During these episodes, the House of Representatives and the Senate confronted numerous constitutional questions, but rarely resolved them on the basis of an identifiable construction of the Constitution's meaning. There is, however, at least one important question of constitutional interpretation that the House of Representatives must be understood to have resolved: the scope of …

Governments, Citizens, And Injurious Industries, Hanoch Dagan, James J. White

Articles

In this Article, Professors Hanoch Dagan and James White study the most recent challenge raised by mass torts litigation: the interference of governments with the bilateral relationship between citizens and injurious industries. Using the tobacco settlement as their case study, Dagan and White explore the important benefits and the grave dangers of recognizing governments' entitlement to reimbursement for costs they have incurred in preventing or ameliorating their citizens' injuries. They further demonstrate that the current law can help capture these benefits and guard against the entailing risks, showing how subrogation law can serve as the legal foundation of the governments' …

The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein

Articles

A long and distinguished line of law-and-economics articles has established that in many circumstances fully compensatory expectation damages are a desirable remedy for breach of contract because they induce both efficient performance and efficient breach. The expectation measure, which seeks to put the breached-against party in the position she would have been in had the contract been performed, has, therefore, rightly been chosen as the dominant contract default rule. It does a far better job of regulating breach-or-perform incentives than its leading competitors-the restitution measure, the reliance measure, and specific performance. This Essay does not directly take issue with the …

The Role Of "Stories" In Civil Jury Judgments, Reid Hastie

University of Michigan Journal of Law Reform

A brief review of psychological theories of juror decision making is followed by an introduction to "explanation-based" theories of judgment. Prior empirical studies of explanation-based processes in juror decision making are then reviewed. An original empirical study of jurors' judgments concerning liability for punitive damages is presented to illustrate the explanation-based approach to civil decisions.

Jury Trials In The Heartland, Stephen E. Chappelear

University of Michigan Journal of Law Reform

In this Article, Stephen Chappelear draws on his study of civil jury trials in the Franklin County Court of Common Pleas in Columbus, Ohio. He concludes that trial by jury results in justice. Despite the popular belief that juries are modern day Robin Hoods, empirical data suggests that their verdicts are lower than commonly believed.

Too Much (Legislation) Is Never Enough: Utilizing A Court's Equity Power To Enjoin Lawful Firearm Sales, 32 J. Marshall L. Rev. 1225 (1999), Edward G. Renner

UIC Law Review

No abstract provided.

The Predictability Of Punitive Damages Awards In Published Opinions, The Impact Of Bmw V. Gore On Punitive Damages Awards, And Forecasting Which Punitive Awards Will Be Reduced, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

This article assesses the relation between compensatory damages and punitive damages in cases leading to published opinions and BMW v. Gore's impact on the patterns of punitive damages awards in these opinions. We find that punitive damages awards are considerably higher in cases leading to published opinions than in trial level cases. But the correlation between compensatory and punitive awards found in trial level data persists in published opinions and is all but indistinguishable from the correlation in trial level data. We find no significant difference in the pattern of awards before and after BMW and no significant difference …

Limiting Patentees' Market Power Without Reducing Innovation Incentives: The Perverse Benefits Of Uncertainty And Non-Injunctive Remedies, Ian Ayres, Paul Klemperer

Michigan Law Review

Uncertainty and delay in patent litigation may have unforeseen virtues. The combination of these oft-criticized characteristics might induce a limited amount of infringement that enhances social welfare without reducing (or without substantially reducing) the profitability of the patentee. Patent infringement is generally viewed as socially inefficient because infringement reduces the patentee's ex ante incentive to innovate. Limited amounts of infringement combined with increased patent duration, however, can substantially reduce the distortionary ex post effects of supracompetitive pricing without reducing the patentee's ex ante incentives to innovate. Indeed, this Article derives a legal regime that preserves the incentive to innovate by …

Markets As Monitors: A Proposal To Replace Class Actions With Exchanges As Securities Fraud Enforcers, Adam C. Pritchard

Articles

Fraud in the securities markets has been a focus of legislative reform in recent years. Corporations-especially those in the high-technology industry-have complained that they are being unfairly targeted by plaintiffs' lawyers in class action securities fraud lawsuits. The corporations' complaints led to the Private Securities Litigation Reform Act of 1995 ("Reform Act"). The Reform Act attempted to reduce meritless litigation against corporate issuers by erecting a series of procedural barriers to the filing of securities class actions. Plaintiffs' attorneys warned that the Reform Act and the resulting decrease in securities class actions would leave corporate fraud unchecked and deprive defrauded …

Shareholder Derivative Litigation And Corporate Governance, Mark J. Loewenstein

Publications

In approving settlements of derivative actions that include fees for plaintiff's attorney, courts typically announce that attorney's fees are approved if a substantial benefit is obtained. In fact, courts, particularly Delaware courts, approve settlements in shareholder derivative actions that included substantial fees for plaintiff's attorney, despite the absence of a corresponding benefit to the corporation. Frequently, the "benefit" obtained is a reform in corporate governance, which is of dubious value to the corporation. To deter frivolous litigation, courts should resist the temptation to approve these settlements just to dispose of the litigation. The paper concludes that fees should not be …

Taking The Mass Out Of Mass Torts: Reflections Of A Dalkon Shield Arbitrator On Alternative Dispute Resolution, Judging, Neutrality, Gender, And Process, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

Life in the modem and post-modem world has changed our understanding of many traditional legal matters. Although many died from plagues, wars, and some shipping and agricultural accidents in the years which preceded the Industrial Revolution and modem breakthroughs in medicine, the twentieth century has given rise to "group" injury and death -it unprecedented levels, all as we march toward growth, progress, and greater goods for greater numbers. Mass progress has resulted in mass injury, which in turn has transformed individualized justice into mass justice. Whether structured as large class actions or as thousands of individual cases dealing with the …

Punitive Awards After Bmw, A New Capping System, And The Reported Opinion Bias, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

Capping punitive damages awards is a centerpiece of the tort reform movement. According to the American Tort Reform Association, as of June 30, 1996, forty-three states allowed punitive damages awards. Of these, twenty-nine states impose no caps on punitive damages and fourteen impose some form of cap. In states that cap punitive awards, the preferred method is to employ a simple multiple of the compensatory award. Eleven states rely on a multiple of the compensatory damages award. The most popular multiple is three times the compensatory award, but this is used by only five states. The capping multiples range from …

Transcript Of The Florida Tobacco Litigation Symposium - Fact, Law, Policy And Significance, Jeffrey W. Stempel, Jean R. Sternlight

Scholarly Works

On November 17, 1997, Professors Jeffrey W. Stempel and Jean R. Sternlight joined a group of colleagues specializing in litigation at the Florida State University College of Law Review's Symposium on the tobacco litigation settlement reached between the State of Florida and five leading tobacco manufacturers that same year. The professors appeared on a panel to discuss the the relationship among the legal system, public health concerns, and tobacco. This is a transcript of those preceedings.

The Predictability Of Punitive Damages, Theodore Eisenberg, John Goerdt, Brian Ostrom, David Rottman, Martin T. Wells

Cornell Law Faculty Publications

Using one year of jury trial outcomes from 45 of the nation's most populous counties, this article shows a strong and statistically significant correlation between compensatory and punitive damages. These findings are replicated in 25 years of punitive damages awards from Cook County, Illinois, and California. In addition, we find no evidence that punitive damages awards are more likely when individuals sue businesses than when individuals sue individuals. With respect to award frequency, juries rarely award punitive damages and appear to be especially reluctant to do so in the areas of law that have captured the most attention, products liability …

The Cathedral At Twenty-Five: Citations And Impressions, James E. Krier, Stewart J. Schwab

Cornell Law Faculty Publications

It was twenty-five years ago that Guido Calabresi and Douglas Melamed published their article on property rules, liability rules, and inalienability. Calabresi, then a law professor, later a dean, is now a federal judge. Melamed, formerly a student of Calabresi's, is now a seasoned Washington attorney. Their article—which, thanks to its subtitle, we shall call The Cathedral—has had a remarkable influence on our own thinking, as we tried to show in a recent paper.

This is not the place to rehash what we said then, but a summary might be in order. First, we demonstrated that the conventional wisdom …

Why Civil Cases Go To Trial: Strategic Bargaining And The Desire For Vindication, Samuel R. Gross, Kent D. Syverud

Articles

When negotiations break down and a dispute cannot be settled, attorneys commonly blame their adversaries, often questioning their ethics or their judgment. After interviewing many attorneys, we have come to believe much of the criticism is directed at strategic moves in negotiation. But strategic ploys are not the only reason dispute resolution fails. Rather, our research also suggest that a genuine desire for vindication through trial or other formal process may be very significant in some types of cases where bargaining breaks down.