Legal Remedies Commons^™

Sequencing In Damages, Edward K. Cheng, Ehud Guttel, Yuval Procaccia

Vanderbilt Law School Faculty Publications

Tort law contains multiple doctrines governing the assignment of liability and the calculation of damages. But in what sequence should courts apply these doctrines? Does it matter, for example, whether a court applies comparative fault before or after mitigation of damages? The answer, rather surprisingly, is that sequencing does matter, and it can substantially affect the compensation that a tort victim ultimately receives. Yet the existing case law on sequencing is ad hoc, inconsistent, and undertheorized, and the issue has been entirely overlooked by the academic literature. In this Article, we introduce and examine the question of sequencing. We offer …

Taming Blockbuster Punitive Damages Awards, W. Kip Viscusi, Benjamin J. Mcmichael

Vanderbilt Law School Faculty Publications

Blockbuster punitive damages awards, i.e., those awards exceeding $100 million, attract attention based on their sheer size. While there have been fewer such awards in the last decade, they remain an important presence in the legal landscape. Taking notice of these and other large punitive damages awards, courts and state policymakers have taken steps to both constrain them and render them more predictable. States have enacted punitive damages caps to limit the amount of punitive damages courts can award, but these caps often contain a number of exceptions and apply only to damages under a specific state’s law. At a …

Patent Litigation In China: Protecting Rights Or The Local Economy?, Brian J. Love, Christian Helmers, Markus Eberhardt

Vanderbilt Journal of Entertainment & Technology Law

Though it lacked a patent system until 1985, China is now the world leader in patent filings and litigation. Despite the meteoric rise of the Chinese patent system, many in the West believe that it acts primarily to facilitate local protectionism rather than innovation. Recent high-profile patent suits filed by relatively unknown Chinese firms against high-profile foreign tech companies, like Apple, Samsung, and Dell, have only added fuel to the fire. Surprisingly, given how commonplace assertions of Chinese protectionism are, little empirical evidence exists to support them. This Article contributes to the literature on this topic by analyzing five years …

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 …

The Myth Of The Condorcet Winner, Paul H. Edelman

Vanderbilt Law School Faculty Publications

There is consensus among legal scholars that, when choosing among multiple alternatives, the Condorcet winner, should it exist, is the preferred option. In this essay I will refute that claim, both normatively and positively. In addition, I will suggest that a different approach, based in behavioral economics, might be a more productive way to model the choices that legislatures make among multiple alternatives.

Constitutional Limitations On Punitive Damages: Ambiguous Effects And Inconsistent Justifications, Benjamin J. Mcmichael

Vanderbilt Law Review

Punitive damages occupy a special place in the U.S. legal system. Courts award them in very few cases, yet they have been the center of tort reform efforts because of their controversial nature.' This controversy centers around the purposes for which punitive damages are awarded-to punish reprehensible conduct and to deter future bad acts. While compensatory damages exist to redress specific harms and to compensate a victim for a particular harm suffered, punitive damages exist to further the much broader social goals of retribution and deterrence.

Because punitive damages must be calibrated to achieve these broad social goals, they necessarily …

Saving Lives Through Punitive Damages, Joni Hersch, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This Article proposes that the value of statistical life ("VSL ") be used to set the total damages amount needed for deterrence when punitive damages are warranted in wrongful death cases. The appropriate level of total damages should be achieved by adjusting the value of punitive damages. Compensatory damages should not be distorted to establish the total damages level needed for efficient deterrence. Attempts to introduce hedonic damages as a compensatory damages component, and proposals to use the VSL on a routine basis when setting compensatory damages awards, are misguided and will undermine the insurance and compensation functions of compensatory …

The End Of Objector Blackmail?, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

Courts and commentators have long been concerned with holdout problems in the law. This Article focuses on a holdout problem in class action litigation known as objector “blackmail.” Objector blackmail occurs when individual class members delay the final resolution of class action settlements by filing meritless appeals in the hope of inducing class counsel to pay them a side settlement to drop their appeals. It is thought that class counsel pay these side settlements because they cannot receive their fee awards until all appeals from the settlement are resolved. Although several solutions to the blackmail problem have been proposed, both …

Is There A Moral Justification For Redressing Historical Injustices?, Katrina M. Wyman

Vanderbilt Law Review

In recent years, there have been lively popular and academic debates in the United States and elsewhere about whether injustices committed decades or even centuries ago should be redressed through official apologies, commissions of inquiry, reparations, and restitution. In the American context, the historical injustices for which redress has been pursued, and in some cases granted, include the internment of Japanese Americans during World War II, the Holocaust, and the mistreatment of Native Americans. Recently, the most prominent debate in the United States has been about whether federal and state governments and corporations should pay reparations to African Americans for …

What Are We Comparing In Comparative Negligence?, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In tort cases, comparative negligence now is the dominant method for determining damages. Under that method, the jury apportions fault among the parties and assesses damages in proportion to the relative fault assessment. Comparative negligence contrasts with contributory negligence, where any fault attributed to the plaintiff bars recovery. Although comparative negligence routinely governs in tort cases, its most basic feature remains uncertain: how to apportion fault. In this Article, I demonstrate that at least two different methods exist, and that these methods lead to radically different outcomes. I create a framework, building on a traditional model from law and economics, …

Rethinking Place Of Business As Choice Of Law In Class Action Lawsuits, Allison M. Gruenwald

Vanderbilt Law Review

In the past century, businesses have come to operate on a national and often global level. In the past century, the United States has seen an enormous nationalization and even globalization of business. As a result, the actions of a single company increasingly have the potential to affect people far beyond the boundaries of that company's home state. When one or a few companies injure large numbers of consumers across the country, aggregate litigation (namely the class action lawsuit) becomes an especially attractive remedy. Aggregating claims allows plaintiffs to save time and money and may also enable them to present …

Punitive Damages: How Judges And Juries Perform, Joni Hersch, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This paper presents the first empirical anatysis that demonstrates that juries differ from judges in awarding punitive damages. Our review of punitive damages awards of $100 million or more identified 63 such awards, of which juries made 95 percent. These jury awards are highly unpredictable and are not significantly correlated with compensatory damages. Using data on jury and bench verdicts from the Civil Justice Survey of State Courts, 1996, we find that juries are significantly more likely to award punitive damages than are judges and award higher levels of punitive damages. Jury awards are also less strongly related to compensatory …

The Blockbuster Punitive Damages Awards, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This paper provides an analysis of 64 punitive damages awards of at least $100 million. Based on an inventory of these cases, there is evidence that these blockbuster awards are highly concentrated geographically, as two states account for 27 of the 64 awards. The awards also have been rising substantially over time, with the majority of these blockbuster awards taking place since 1999. An assessment of the current status of the blockbuster punitive damages awards indicates that most of these awards have been appealed, but the reversal of these punitive damages awards is the exception rather than the rule. Many …

The Impact Of State Prohibitions Of Punitive Damages On Libel Litigation: An Empirical Analysis, Dennis Hale

Vanderbilt Journal of Entertainment & Technology Law

This Article explores the role of punitive damages in media libel cases by measuring the quantity and quality of libel appeals for a ten-year period in states with and without punitive damages. Specifically, the Article identifies appellate court decisions for media libel cases over a ten year period from 1986 to 1995, comparing five states with punitive damages (Alabama, New Mexico, South Carolina, South Dakota and Tennessee) to five states without punitive damages (Louisiana, Massachusetts, Nebraska, Oregon and Washington). Each appeal of a federal or state media libel case was coded for the following characteristics: year, whether the media won …

Juries, Hindsight, And Punitive Damages Awards: Reply To Richard Lempert, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Richard Lempert, a Professor of Law and Sociology at the University of Michigan criticized our recent article on judge and jury performance of a punitive damage judgment task, calling it a "failure of a social science case for change." Professor Lempert's depiction of our research is confusing and incorrect. However, because we believe a reading of only the Lempert critique can lead to a substantial misunderstanding of our research and its implications, we have written a reply.

Punitive Damages: How Jurors Fail To Promote Efficiency, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Evidence of corporate risk-cost balancing often leads to inefficient punitive damages awards, suggesting that jurors fail to base their decision making on principles of economic efficiency. In this Article, Professor Viscusi presents the results of two experiments regarding jury behavior and punitive damages. In the first experiment, Professor Viscusi found that mock jurors punish companies for balancing risk against cost, although award levels vary depending on how the economic analysis is presented at trial. The results of the second experiment suggested that mock jurors are unwilling or unable to follow a set of model jury instructions designed to generate efficient …

Remedies And The Psychology Of Ownership, Jeffrey J. Rachlinski, Forest Jourden

Vanderbilt Law Review

It is surprising that there are cases like Boomer v. Atlantic Cement Co.I The plaintiffs in Boomer were eight homeowners seeking injunctive relief against the dust and noise produced by a neighboring cement plant, the Atlantic Cement Company. The trial court declared Atlantic Cement a nuisance, but refused to enjoin the plant's operations. Instead, the court awarded monetary damages to the plaintiffs for the loss in value to their property attributable to the defendant's activities. The dissatisfied plaintiffs appealed, but ultimately New York's highest court declared that they were not entitled to injunctive relief. That the plaintiffs sued the plant …

What Juries Can't Do Well: The Jury's Performance As A Risk Manager, W. Kip Viscusi, Reid Hastie

Vanderbilt Law School Faculty Publications

Can juries handle complex cases? One way to frame this question in behavioral science terms is to ask: What tasks can juries perform well and what tasks will they perform poorly? Our basic precept is that the legal system should ask juries to perform tasks that they are good at performing and should not require juries to carry out tasks that they cannot perform well. A second guiding theme in our approach to the issue of jury competency is that the most relevant, most useful analyses of jury performance are based on empirical observations and data, not on rational analyses …

Why There Is No Defense Of Punitive Damages, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This paper is a response to the comments by David Luban and Theodore Eisenberg on my article on punitive damages to be published in the Georgetown Law Journal (1998) and entitled "The Social Costs of Punitive Damages against Corporations in Environmental and Safety Tort." Neither of these authors presents any evidence indicating that there is a determent effect of punitive damages. They suggest, however, that there could be retribution objectives or other rationales for punitive damages. In addition, they claim that punitive damages are predictable and that cognitive biases may not tilt juries against corporations. This paper reviews these diverse …

Ioltas Unmasked: Legal Aid Programs' Funding Results In Taking Of Clients' Property, Kevin H. Douglas

Vanderbilt Law Review

States have implemented Interest on Lawyers' Trust Account programs ('IOLTAs")' to generate revenue for legal aid. IOLTAs raise money through the creation of an economy of scale by directing attorneys to place clients' trust funds that could not profitably draw interest in individual checking accounts into an unsegregated interest- bearing bank account ("IOLTA account"). By significantly reducing the expense that results from opening and maintaining separate accounts for individual clients, the IOLTA account profitably draws interest when individual client accounts could not. The interest generated from the IOLTA account is used to fund legal aid programs according to the specifications …

Psychology, Economics, And Settlement: A New Look At The Role Of The Lawyer, Chris Guthrie, Russell Korobkin

Vanderbilt Law School Faculty Publications

Law and economics models of litigation settlement, based on the behavioral assumptions of rational choice theory, ignore the many psychological reasons that settlement negotiations can fail, yet they accurately predict that vast majority of lawsuits will settle short of formal adjudication. What explains this? We present experimental data that suggests lawyers might evaluate the settlement vs. adjudication decision from a perspective more closely akin to "rational choice theory" than will non-lawyers and, consequently, increase the observed level of settlement. We then evaluate whether the hypothesized difference between lawyers and non-lawyers is likely to lead to more efficient dispute resolution, concluding …

Punitive Damages: A Relic That Has Outlived Its Origins, James B. Sales, Kenneth B. Cole, Jr.

Vanderbilt Law Review

The doctrine of punitive damages truly is an ancient legal concept that inexplicably has evaded commitment to the archives of history. Irrespective of the questionable validity of the doctrine at early common law, the simple fact remains that none of the historical justifications supports the punitive damage theory in today's tort reparations system. The quest to bestow increasing compensation no longer can justify punitive damage awards because actual damages currently recoverable compensate plaintiffs more than adequately for every conceivable element of physical, emotional, or imagined injury. The desire to inflict punishment, likewise, represents an insupportable basis for awarding quasi-criminal fines …

On Product "Design Defects" And Their Actionability, John W. Wade

Vanderbilt Law Review

This Article has tried to explain and discuss these developments, to evaluate them, to show their relationship to the general state of the law, and to make suggestions on how far they should affect its future development. At present, the question of "design defects" and the determination of when a product is actionable because of the nature of its design appears to be the most agitated and controversial question before the courts in the field of products liability. I hope that this Article can be of some help to the courts in seeking to develop the most suitable answer to …

Recent Cases, Theodore Brown, Jr., Janet R. Necessary

Vanderbilt Law Review

Responding to an increase in the number of habeas corpus petitions filed by federal prisoners in the district courts whose jurisdictions included federal prisons,, Congress in 1948 enacted 28 U.S.C. § 2255.1 The statute's purpose is to provide federal prisoners with an expeditious remedy for correcting erroneous sentencing without resort to habeas corpus.' In an effort to restrict the number of evidentiary hearings required, section 2255 provides for denial of petitions in which the motion, files, and records of the case conclusively demonstrate that the prisoner is entitled to no relief." Since approximately two-thirds of all federal criminal prosecutions are …

Constitutional Requirements For Standardized Ability Tests Used In Education, Lewis D. Beckwith

Vanderbilt Law Review

This Note examines the groundwork for possible legal remedies to correct the abuses of tests and testing procedures used by some educators. Because the standardized ability tests administered as prerequisites to college admission are perhaps the most significant obstacles to an individual's educational development, the discussion herein is directed primarily to them. This Note attempts to demonstrate that existing legal doctrines provide an adequate basis for challenging some of the standardized ability tests used in determining college entrance requirements as violations of equal protection and procedural due process. It also discusses the scope of a proper remedy for individuals aggrieved …

Limitations On Liability For Economic Loss Caused By Negligence: A Pragmatic Appraisal, Fleming James, Jr.

Vanderbilt Law Review

Even if liability for indirect economic consequences of negligence may in some cases be too broad and open-ended to be endured, care should be taken to see whether that is true in all types of situations; if it is not true, one must examine whether a rule may be fashioned to separate the wheat from the chaff. In this discussion it has been assumed that if the pragmatic consideration has any validity, it is in the field of indirect economic loss rather than that of physical damage. As one commentator put it, "only a limited amount of physical damage can …

Variation On Libel Per Quod, Laurence H. Eldredge

Vanderbilt Law Review

During the nineteenth century it became settled common law in England and in the United States that in any action for libel, as distinct from slander, the plaintiff could recover damages without pleading or proving that he had in fact suffered any damages as a result of the publication. The American Law Institute accepted this as sound law. Volume III of the Restatement of Torts, published in 1938, stated the rule in section 569: "One who falsely, and without a privilege to do so, publishes matter defamatory to another in such a manner as to make the publication a libel …

Recent Treaties And Statutes, Shelley I. Stiles, Iii

Vanderbilt Journal of Transnational Law

Since the 1946 Supreme Court decision in Seas Shipping Co. v. Sieracki, the seaman's traditional remedy based on absolute liability of the vessel for an unseaworthy condition also has been available to longshoremen. Limited to longshoremen working aboard the vessel, the Sieracki opinion emphasized that the work of loading and unloading vessels was a maritime service formerly and historically rendered by seamen, and reasoned that because the work now performed by longshoremen involved risks commensurate with those undertaken by seamen, longshoremen injured on board ship should be entitled to unlimited recovery under the seaworthiness doctrine. The seaworthiness doctrine was expanded …

Forward: A Symposium On Restitution, John P. Dawson

Vanderbilt Law Review

The editors of the Vanderbilt Law Review deserve praise for arranging this symposium on the neglected subject of Restitution, a great and growing area of our private law whose literature is extra-ordinarily meager. Partly because of this neglect by legal scholars,the practicing profession as a whole remains unaware of the range and variety of restitutionary remedies and the possibilities they offer for solving problems that are otherwise intractable. The volume of restitution cases reported in current advance sheets shows that courts and lawyers are learning to make use of restitution remedies, but the subject still inspires hesitation and diffidence, for …

Restitution For Benefits Conferred Without Request, John W. Wade

Vanderbilt Law Review

The principle is now fully recognized in this country that a "person who has been unjustly enriched at the expense of another is required to make restitution to the other." This is the language of the first section of the Restatement of Restitution.' When one person confers a benefit upon another without the latter's solicitation, the benefit received constitutes an enrichment--a windfall, so to speak. This benefit may take one of several forms. It may involve (1) transferring property to the defendant, (2) saving, preserving or improving his property, (3) rendering personal services for him, or (4) performing for him …