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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 …
Clarifying A "Pattern" Of Confusion: A Multi-Factor Approach To Civil Rico's Pattern Requirement, Ethan M. Posner
Clarifying A "Pattern" Of Confusion: A Multi-Factor Approach To Civil Rico's Pattern Requirement, Ethan M. Posner
Michigan Law Review
In an attempt to provide some needed definitional clarity and redirect civil RICO toward its intended focus, this Note argues that the federal judiciary should interpret the pattern requirement narrowly, focusing on four basic factors that best demonstrate a prolonged, continuing example of criminal activity. By emphasizing (1) the presence of multiple victims, (2) the duration of the RICO defendant's criminal activity, (3) the number of illicit commercial transactions, and (4) the existence of independent criminal decisions, courts could consistently limit civil RICO to the most pernicious offenders. Part I of this Note will examine judicial interpretations of RICO and …
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 …
Class Actions For Punitive Damages, Michigan Law Review
Class Actions For Punitive Damages, Michigan Law Review
Michigan Law Review
This Note argues that a Rule 23 class action offers the best way to manage multiple actions for punitive damages. It begins by examining the policy underlying punitive damages and the plaintiffs interest in recovering them. It then explains why a limited fund is created when courts deny punitive damage recovery as a matter of law or when punitive claims exceed defendant's assets. The Note contends that a Rule 23(b)(l)(B) class action provides the best means to manage this limited fund and reviews the circumstances in which a district court may properly certify a class action for punitive damages. It …
Punitive Surcharges Against Disloyal Fiduciaries--Is Rothko Right?, Richard V. Wellman
Punitive Surcharges Against Disloyal Fiduciaries--Is Rothko Right?, Richard V. Wellman
Michigan Law Review
This Article criticizes the award of a penalty surcharge in the name of appreciation damages. Contrary to the statements in the Rothko opinions, neither precedent nor treatises offers clear support for the shocking awards made against Rothko's disloyal executors. Furthermore, even if appreciation damages were to be viewed, against the thesis here advanced, as an appropriate remedy for some kinds of fiduciary breach, the measure is inappropriate for cases which, like Rothko, involve hidden conflicts of interest. This is so because the threat of severe penalties in hidden-conflict cases adds unacceptable legal costs to honest administrations-costs that cannot be …
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 …
Securities Regulation--Damages--The Possibility Of Punitive Damages As A Remedy For A Violation Of Rule 10b-5, Michigan Law Review
Securities Regulation--Damages--The Possibility Of Punitive Damages As A Remedy For A Violation Of Rule 10b-5, Michigan Law Review
Michigan Law Review
Several lower federal courts have recently been faced with this issue and have reached conflicting results in their attempts to resolve it. This Note will examine both the problems of statutory interpretation and the policy considerations that are involved in deciding whether punitive damages should be awarded in civil actions based on violations of rule I0b-5.