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Full-Text Articles in Legal Remedies
Punishment But Not A Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Paul A. Hoversten
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 …
A Financial Economic Theory Of Punitive Damages, Robert J. Rhee
A Financial Economic Theory Of Punitive Damages, Robert J. Rhee
Michigan Law Review
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 …
The Constitutionality Of Punitive Damages Under The Excessive Fines Clause Of The Eighth Amendment, Andrew M. Kenefick
The Constitutionality Of Punitive Damages Under The Excessive Fines Clause Of The Eighth Amendment, Andrew M. Kenefick
Michigan Law Review
This Note explores whether courts should look beyond the broad language in Ingraham v. Wright and scrutinize punitive damages under the excessive fines clause. Part I sets out the intuitive argument that punitive damages are analogous to criminal fines. Part II analyzes the Supreme Court's decision in Ingraham v. Wright and also reviews the few federal and state court decisions that have dealt with the excessive fines clause in civil cases, most of which have concluded that the clause has no application in a civil setting. This Part asserts that courts cannot rely solely on the Ingraham decision but must …
Punitive Damages In Products Liability Litigation, David G. Owen
Punitive Damages In Products Liability Litigation, David G. Owen
Michigan Law Review
This article will first explore the doctrine of punitive damages and its compatibility with the theories of products liability. The functions of punitive damages and their applicability in the products liability context will then be examined, with particular consideration given to the three complicating factors raised by Judge Friendly in Roginsky. In the following section attention will focus on the various contexts in which manufacturer misconduct has arisen in the reported decisions and a number of unreported cases that have involved this issue. Finally, guidelines will be developed from these cases for determining the appropriateness of punitive damages awards …