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Francoisxavier Licari - One of the best experts on this subject based on the ideXlab platform.
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les conflits de lois en matiere de dommages interets punitifs l experience de la louisiane applying foreign Punitive Damage laws in louisiana the experience of a mixed jurisdiction
2013Co-Authors: Benjamin West Janke, Francoisxavier LicariAbstract:La Louisiane est fondamentalement refractaire aux dommages-interets punitifs. Cette position s’illustre evidemment par son droit substantiel, mais n’est pas sans repercussion sur son systeme de conflits de lois. Si le legislateur louisianais n’est pas alle jusqu’a adopter une clause d’ordre public, il a insere dans le Code civil de Louisiane une disposition visant a restreindre les cas ou le juge louisianais pourra allouer des dommages-interets punitifs. Au-dela de la presentation de cette norme originale, l’article permet une reflexion sur les interets en presence lorsque surgit un conflit de lois en matiere de dommages-interets punitifs. There is perhaps no better laboratory to scrutinize Punitive Damages than Louisiana. As a civil law island surrounded by common law jurisdictions, it shares some compensation principles that are decidedly civilian, and others that are clearly influenced by its American neighbors. Likewise, Louisiana’s geography has given rise to a sophisticated, and well-exercised, system for addressing conflicts of laws. Here, the intersection of divergent principles of compensation provokes an inquiry into the validity of the “full compensation” theory. The conflicts analysis in the context of delicts and quasi-delicts, and especially in the context of Punitive Damages, is complex and involves a plurality of norms of the Louisiana Civil Code (La. Civ. Code). The general inquiry under Louisiana’s conflicts analysis is the determination of the state whose policies would be most seriously impaired if its law were not applied to that issue. The central provision is La. Civ. Code art. 3515, which states: Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state. Analyzing this article with other Code articles and Louisiana case-law, the authors conclude that the likelihood that a Louisiana court will enforce a foreign Punitive Damage law is low, given that the conflicts analysis weighs heavily in favor of a determination that the tortfeasor has more contacts with Louisiana than elsewhere. The general policy prohibiting Punitive Damages greatly influences every factor of the conflicts analysis except for those factors that clearly weigh in favor of applying the law of another state. So long as Louisiana holds on to the belief that Punitive Damages are per se incompatible with the theory of full compensation, the conflicts analysis for Punitive Damages will seldom result in the imposition of the law of another state.
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Les Conflits De Lois En Matière De Dommages-Intérêts Punitifs: L’Expérience De La Louisiane (Applying Foreign Punitive Damage Laws in Louisiana: The Experience of a Mixed Jurisdiction)
2013Co-Authors: Benjamin West Janke, Francoisxavier LicariAbstract:La Louisiane est fondamentalement refractaire aux dommages-interets punitifs. Cette position s’illustre evidemment par son droit substantiel, mais n’est pas sans repercussion sur son systeme de conflits de lois. Si le legislateur louisianais n’est pas alle jusqu’a adopter une clause d’ordre public, il a insere dans le Code civil de Louisiane une disposition visant a restreindre les cas ou le juge louisianais pourra allouer des dommages-interets punitifs. Au-dela de la presentation de cette norme originale, l’article permet une reflexion sur les interets en presence lorsque surgit un conflit de lois en matiere de dommages-interets punitifs. There is perhaps no better laboratory to scrutinize Punitive Damages than Louisiana. As a civil law island surrounded by common law jurisdictions, it shares some compensation principles that are decidedly civilian, and others that are clearly influenced by its American neighbors. Likewise, Louisiana’s geography has given rise to a sophisticated, and well-exercised, system for addressing conflicts of laws. Here, the intersection of divergent principles of compensation provokes an inquiry into the validity of the “full compensation” theory. The conflicts analysis in the context of delicts and quasi-delicts, and especially in the context of Punitive Damages, is complex and involves a plurality of norms of the Louisiana Civil Code (La. Civ. Code). The general inquiry under Louisiana’s conflicts analysis is the determination of the state whose policies would be most seriously impaired if its law were not applied to that issue. The central provision is La. Civ. Code art. 3515, which states: Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state. Analyzing this article with other Code articles and Louisiana case-law, the authors conclude that the likelihood that a Louisiana court will enforce a foreign Punitive Damage law is low, given that the conflicts analysis weighs heavily in favor of a determination that the tortfeasor has more contacts with Louisiana than elsewhere. The general policy prohibiting Punitive Damages greatly influences every factor of the conflicts analysis except for those factors that clearly weigh in favor of applying the law of another state. So long as Louisiana holds on to the belief that Punitive Damages are per se incompatible with the theory of full compensation, the conflicts analysis for Punitive Damages will seldom result in the imposition of the law of another state.
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enforcing Punitive Damage awards in france after fountaine pajot
American Journal of Comparative Law, 2012Co-Authors: Benjamin West Janke, Francoisxavier LicariAbstract:In a landmark ruling, the Cour de cassation held that 'an award of Punitive Damages is not, per se, contrary to public policy,' but that 'it is otherwise when the amount awarded is disproportionate with regard to the Damage sustained and the debtor's breach of his contractual obligation.' Schlenzka & Langhorne v. Fountaine Pajot, S.A. involved the failed attempt by American judgment creditors to enforce their California judgment against a French defendant in France. At the same time that the judgment creditors were taking their case through the French legal system, the Cour de cassation, in a different line of cases, liberalized the conditions under which a foreign judgment could be enforced in France. But when the Court opened one door for the American plaintiffs, it closed another by refusing to enforce the judgment because it included disproportionate Punitive Damages. The Court's reasons were inconsistent with prior interpretations of proportionality and disingenuous to the court's modern approach to the enforcement of foreign judgments. In just a few words, the Court echoed prevailing French and European sentiments about American Punitive Damage awards. Unfortunately, the prevailing attitudes are dominated more by prejudice than by fact and reason.
Benjamin West Janke - One of the best experts on this subject based on the ideXlab platform.
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les conflits de lois en matiere de dommages interets punitifs l experience de la louisiane applying foreign Punitive Damage laws in louisiana the experience of a mixed jurisdiction
2013Co-Authors: Benjamin West Janke, Francoisxavier LicariAbstract:La Louisiane est fondamentalement refractaire aux dommages-interets punitifs. Cette position s’illustre evidemment par son droit substantiel, mais n’est pas sans repercussion sur son systeme de conflits de lois. Si le legislateur louisianais n’est pas alle jusqu’a adopter une clause d’ordre public, il a insere dans le Code civil de Louisiane une disposition visant a restreindre les cas ou le juge louisianais pourra allouer des dommages-interets punitifs. Au-dela de la presentation de cette norme originale, l’article permet une reflexion sur les interets en presence lorsque surgit un conflit de lois en matiere de dommages-interets punitifs. There is perhaps no better laboratory to scrutinize Punitive Damages than Louisiana. As a civil law island surrounded by common law jurisdictions, it shares some compensation principles that are decidedly civilian, and others that are clearly influenced by its American neighbors. Likewise, Louisiana’s geography has given rise to a sophisticated, and well-exercised, system for addressing conflicts of laws. Here, the intersection of divergent principles of compensation provokes an inquiry into the validity of the “full compensation” theory. The conflicts analysis in the context of delicts and quasi-delicts, and especially in the context of Punitive Damages, is complex and involves a plurality of norms of the Louisiana Civil Code (La. Civ. Code). The general inquiry under Louisiana’s conflicts analysis is the determination of the state whose policies would be most seriously impaired if its law were not applied to that issue. The central provision is La. Civ. Code art. 3515, which states: Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state. Analyzing this article with other Code articles and Louisiana case-law, the authors conclude that the likelihood that a Louisiana court will enforce a foreign Punitive Damage law is low, given that the conflicts analysis weighs heavily in favor of a determination that the tortfeasor has more contacts with Louisiana than elsewhere. The general policy prohibiting Punitive Damages greatly influences every factor of the conflicts analysis except for those factors that clearly weigh in favor of applying the law of another state. So long as Louisiana holds on to the belief that Punitive Damages are per se incompatible with the theory of full compensation, the conflicts analysis for Punitive Damages will seldom result in the imposition of the law of another state.
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Les Conflits De Lois En Matière De Dommages-Intérêts Punitifs: L’Expérience De La Louisiane (Applying Foreign Punitive Damage Laws in Louisiana: The Experience of a Mixed Jurisdiction)
2013Co-Authors: Benjamin West Janke, Francoisxavier LicariAbstract:La Louisiane est fondamentalement refractaire aux dommages-interets punitifs. Cette position s’illustre evidemment par son droit substantiel, mais n’est pas sans repercussion sur son systeme de conflits de lois. Si le legislateur louisianais n’est pas alle jusqu’a adopter une clause d’ordre public, il a insere dans le Code civil de Louisiane une disposition visant a restreindre les cas ou le juge louisianais pourra allouer des dommages-interets punitifs. Au-dela de la presentation de cette norme originale, l’article permet une reflexion sur les interets en presence lorsque surgit un conflit de lois en matiere de dommages-interets punitifs. There is perhaps no better laboratory to scrutinize Punitive Damages than Louisiana. As a civil law island surrounded by common law jurisdictions, it shares some compensation principles that are decidedly civilian, and others that are clearly influenced by its American neighbors. Likewise, Louisiana’s geography has given rise to a sophisticated, and well-exercised, system for addressing conflicts of laws. Here, the intersection of divergent principles of compensation provokes an inquiry into the validity of the “full compensation” theory. The conflicts analysis in the context of delicts and quasi-delicts, and especially in the context of Punitive Damages, is complex and involves a plurality of norms of the Louisiana Civil Code (La. Civ. Code). The general inquiry under Louisiana’s conflicts analysis is the determination of the state whose policies would be most seriously impaired if its law were not applied to that issue. The central provision is La. Civ. Code art. 3515, which states: Except as otherwise provided in this Book, an issue in a case having contacts with other states is governed by the law of the state whose policies would be most seriously impaired if its law were not applied to that issue. That state is determined by evaluating the strength and pertinence of the relevant policies of all involved states in the light of: (1) the relationship of each state to the parties and the dispute; and (2) the policies and needs of the interstate and international systems, including the policies of upholding the justified expectations of parties and of minimizing the adverse consequences that might follow from subjecting a party to the law of more than one state. Analyzing this article with other Code articles and Louisiana case-law, the authors conclude that the likelihood that a Louisiana court will enforce a foreign Punitive Damage law is low, given that the conflicts analysis weighs heavily in favor of a determination that the tortfeasor has more contacts with Louisiana than elsewhere. The general policy prohibiting Punitive Damages greatly influences every factor of the conflicts analysis except for those factors that clearly weigh in favor of applying the law of another state. So long as Louisiana holds on to the belief that Punitive Damages are per se incompatible with the theory of full compensation, the conflicts analysis for Punitive Damages will seldom result in the imposition of the law of another state.
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enforcing Punitive Damage awards in france after fountaine pajot
American Journal of Comparative Law, 2012Co-Authors: Benjamin West Janke, Francoisxavier LicariAbstract:In a landmark ruling, the Cour de cassation held that 'an award of Punitive Damages is not, per se, contrary to public policy,' but that 'it is otherwise when the amount awarded is disproportionate with regard to the Damage sustained and the debtor's breach of his contractual obligation.' Schlenzka & Langhorne v. Fountaine Pajot, S.A. involved the failed attempt by American judgment creditors to enforce their California judgment against a French defendant in France. At the same time that the judgment creditors were taking their case through the French legal system, the Cour de cassation, in a different line of cases, liberalized the conditions under which a foreign judgment could be enforced in France. But when the Court opened one door for the American plaintiffs, it closed another by refusing to enforce the judgment because it included disproportionate Punitive Damages. The Court's reasons were inconsistent with prior interpretations of proportionality and disingenuous to the court's modern approach to the enforcement of foreign judgments. In just a few words, the Court echoed prevailing French and European sentiments about American Punitive Damage awards. Unfortunately, the prevailing attitudes are dominated more by prejudice than by fact and reason.
Claudia M Landeo - One of the best experts on this subject based on the ideXlab platform.
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Split-awards and disputes: An experimental study of a strategic model of litigation
Journal of Economic Behavior and Organization, 2007Co-Authors: Claudia M Landeo, Maxim Nikitin, Linda BabcockAbstract:This paper studies experimentally the impact of the split-award statute, where the state takes a share of the plaintiff's Punitive Damage award, on litigation outcomes. Our findings indicate that dispute rates are significantly lower when bargaining is performed under the split-award institution. Defendants' litigation losses and plaintiffs' net compensation are significantly reduced by the split-award statute.
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Split-Award Tort Reform, Firm's Level of Care, and Litigation Outcomes
Journal of Institutional and Theoretical Economics-zeitschrift Fur Die Gesamte Staatswissenschaft, 2006Co-Authors: Claudia M Landeo, Maxim NikitinAbstract:We investigate the effect of the split-award tort reform, where the state takes a share of the plaintiff's Punitive Damage award, on the firm's level of care, the likelihood of trial, and the social costs of accidents. A decrease in the plaintiff's share of the Punitive Damage award reduces the firm's level of care and therefore increases the probability of accidents. The effects of split awards on the likelihood of trial and social costs of accidents are ambiguous. Conditions under which a decrease in the plaintiff's share of the Punitive Damage award reduces the probability of trial and the social cost of accidents are derived.
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Punitive Damage awards frivolous lawsuits and firmâ s level of care
Econometric Society 2004 North American Summer Meetings, 2004Co-Authors: Maxim Nikitin, Claudia M LandeoAbstract:Punitive Damage awards have been widely criticized for generating a plaintiff’s windfall (i.e., a payment in excess of the costs of pursuing the Punitive claim), which promotes unnecessary litigation, the escalation of liability insurance premiums and over-deterrence. In an attempt to overcome these negative effects, several US states have implemented many different kinds of tort reform. Some reforms take the form of caps or limits on Punitive Damage awards while others, called “split-awards†, have mandated that a share of the award be allocated to the plaintiff with the remainder going to the state. Our paper presents a strategic model of litigation under a negligence rule. We extend Spier's (1997) theoretical framework on litigation by explicitly modeling frivolous lawsuits. In this way, we capture the main welfare effects of Punitive awards on firm's level of care and the likelihood of frivolous lawsuits. We derive sufficient conditions for a unique universally-divine mixed-strategy perfect Bayesian equilibrium (Banks and Sobel, 1987) in which some defendants choose to be negligent, but some meet the negligence standard. In this equilibrium, some lawsuits are not meritorious (frivolous lawsuits), and some lawsuits are dropped, some are resolved out-of-court and some go to trial. We then use this framework to analyze the welfare effect of Punitive Damages, and to explore the effect of split-awards and caps on the probability that firms choose to be careful, the probability that frivolous lawsuits are filed, and the probability that a lawsuit proceeds to the award stage of a trial. Consistent with Katz (1990), we predict that caps increase the likelihood of frivolous lawsuits. Given that the defendant does not know the type of plaintiff it is confronting and that only in meritorious cases Punitive Damages are awarded, the likelihood that the defendant makes an out-of-court settlement offer is negatively related to the amount of the award. Then, a reduction in the award due to a cap will increase the expected payoff for a frivolous plaintiff, generating additional incentives to file lawsuits. Consistent with Babcock and Pogarsky (1999) and Daughety and Reinganum (2003), we also find that caps and split-awards decrease the likelihood of trial. Furthermore, caps and split-awards reduce the likelihood that a firm chooses to be careful, because they lower the expected litigation costs. The firm reacts to these lower expected costs by reducing expenditures on safety. Finally, we find that the overall welfare effect of these reforms is ambiguous, because the reduction in the litigation costs of meritorious plaintiffs and defendants may be offset by an increase in the number of frivolous lawsuits and the likelihood of accidents.
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Punitive Damage Awards, Frivolous Lawsuits and Firm’s Level of Care
2004Co-Authors: Maxim Nikitin, Claudia M LandeoAbstract:Punitive Damage awards have been widely criticized for generating a plaintiff’s windfall (i.e., a payment in excess of the costs of pursuing the Punitive claim), which promotes unnecessary litigation, the escalation of liability insurance premiums and over-deterrence. In an attempt to overcome these negative effects, several US states have implemented many different kinds of tort reform. Some reforms take the form of caps or limits on Punitive Damage awards while others, called “split-awards†, have mandated that a share of the award be allocated to the plaintiff with the remainder going to the state. Our paper presents a strategic model of litigation under a negligence rule. We extend Spier's (1997) theoretical framework on litigation by explicitly modeling frivolous lawsuits. In this way, we capture the main welfare effects of Punitive awards on firm's level of care and the likelihood of frivolous lawsuits. We derive sufficient conditions for a unique universally-divine mixed-strategy perfect Bayesian equilibrium (Banks and Sobel, 1987) in which some defendants choose to be negligent, but some meet the negligence standard. In this equilibrium, some lawsuits are not meritorious (frivolous lawsuits), and some lawsuits are dropped, some are resolved out-of-court and some go to trial. We then use this framework to analyze the welfare effect of Punitive Damages, and to explore the effect of split-awards and caps on the probability that firms choose to be careful, the probability that frivolous lawsuits are filed, and the probability that a lawsuit proceeds to the award stage of a trial. Consistent with Katz (1990), we predict that caps increase the likelihood of frivolous lawsuits. Given that the defendant does not know the type of plaintiff it is confronting and that only in meritorious cases Punitive Damages are awarded, the likelihood that the defendant makes an out-of-court settlement offer is negatively related to the amount of the award. Then, a reduction in the award due to a cap will increase the expected payoff for a frivolous plaintiff, generating additional incentives to file lawsuits. Consistent with Babcock and Pogarsky (1999) and Daughety and Reinganum (2003), we also find that caps and split-awards decrease the likelihood of trial. Furthermore, caps and split-awards reduce the likelihood that a firm chooses to be careful, because they lower the expected litigation costs. The firm reacts to these lower expected costs by reducing expenditures on safety. Finally, we find that the overall welfare effect of these reforms is ambiguous, because the reduction in the litigation costs of meritorious plaintiffs and defendants may be offset by an increase in the number of frivolous lawsuits and the likelihood of accidents.
Maxim Nikitin - One of the best experts on this subject based on the ideXlab platform.
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Split-awards and disputes: An experimental study of a strategic model of litigation
Journal of Economic Behavior and Organization, 2007Co-Authors: Claudia M Landeo, Maxim Nikitin, Linda BabcockAbstract:This paper studies experimentally the impact of the split-award statute, where the state takes a share of the plaintiff's Punitive Damage award, on litigation outcomes. Our findings indicate that dispute rates are significantly lower when bargaining is performed under the split-award institution. Defendants' litigation losses and plaintiffs' net compensation are significantly reduced by the split-award statute.
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Split-Award Tort Reform, Firm's Level of Care, and Litigation Outcomes
Journal of Institutional and Theoretical Economics-zeitschrift Fur Die Gesamte Staatswissenschaft, 2006Co-Authors: Claudia M Landeo, Maxim NikitinAbstract:We investigate the effect of the split-award tort reform, where the state takes a share of the plaintiff's Punitive Damage award, on the firm's level of care, the likelihood of trial, and the social costs of accidents. A decrease in the plaintiff's share of the Punitive Damage award reduces the firm's level of care and therefore increases the probability of accidents. The effects of split awards on the likelihood of trial and social costs of accidents are ambiguous. Conditions under which a decrease in the plaintiff's share of the Punitive Damage award reduces the probability of trial and the social cost of accidents are derived.
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Punitive Damage awards frivolous lawsuits and firmâ s level of care
Econometric Society 2004 North American Summer Meetings, 2004Co-Authors: Maxim Nikitin, Claudia M LandeoAbstract:Punitive Damage awards have been widely criticized for generating a plaintiff’s windfall (i.e., a payment in excess of the costs of pursuing the Punitive claim), which promotes unnecessary litigation, the escalation of liability insurance premiums and over-deterrence. In an attempt to overcome these negative effects, several US states have implemented many different kinds of tort reform. Some reforms take the form of caps or limits on Punitive Damage awards while others, called “split-awards†, have mandated that a share of the award be allocated to the plaintiff with the remainder going to the state. Our paper presents a strategic model of litigation under a negligence rule. We extend Spier's (1997) theoretical framework on litigation by explicitly modeling frivolous lawsuits. In this way, we capture the main welfare effects of Punitive awards on firm's level of care and the likelihood of frivolous lawsuits. We derive sufficient conditions for a unique universally-divine mixed-strategy perfect Bayesian equilibrium (Banks and Sobel, 1987) in which some defendants choose to be negligent, but some meet the negligence standard. In this equilibrium, some lawsuits are not meritorious (frivolous lawsuits), and some lawsuits are dropped, some are resolved out-of-court and some go to trial. We then use this framework to analyze the welfare effect of Punitive Damages, and to explore the effect of split-awards and caps on the probability that firms choose to be careful, the probability that frivolous lawsuits are filed, and the probability that a lawsuit proceeds to the award stage of a trial. Consistent with Katz (1990), we predict that caps increase the likelihood of frivolous lawsuits. Given that the defendant does not know the type of plaintiff it is confronting and that only in meritorious cases Punitive Damages are awarded, the likelihood that the defendant makes an out-of-court settlement offer is negatively related to the amount of the award. Then, a reduction in the award due to a cap will increase the expected payoff for a frivolous plaintiff, generating additional incentives to file lawsuits. Consistent with Babcock and Pogarsky (1999) and Daughety and Reinganum (2003), we also find that caps and split-awards decrease the likelihood of trial. Furthermore, caps and split-awards reduce the likelihood that a firm chooses to be careful, because they lower the expected litigation costs. The firm reacts to these lower expected costs by reducing expenditures on safety. Finally, we find that the overall welfare effect of these reforms is ambiguous, because the reduction in the litigation costs of meritorious plaintiffs and defendants may be offset by an increase in the number of frivolous lawsuits and the likelihood of accidents.
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Punitive Damage Awards, Frivolous Lawsuits and Firm’s Level of Care
2004Co-Authors: Maxim Nikitin, Claudia M LandeoAbstract:Punitive Damage awards have been widely criticized for generating a plaintiff’s windfall (i.e., a payment in excess of the costs of pursuing the Punitive claim), which promotes unnecessary litigation, the escalation of liability insurance premiums and over-deterrence. In an attempt to overcome these negative effects, several US states have implemented many different kinds of tort reform. Some reforms take the form of caps or limits on Punitive Damage awards while others, called “split-awards†, have mandated that a share of the award be allocated to the plaintiff with the remainder going to the state. Our paper presents a strategic model of litigation under a negligence rule. We extend Spier's (1997) theoretical framework on litigation by explicitly modeling frivolous lawsuits. In this way, we capture the main welfare effects of Punitive awards on firm's level of care and the likelihood of frivolous lawsuits. We derive sufficient conditions for a unique universally-divine mixed-strategy perfect Bayesian equilibrium (Banks and Sobel, 1987) in which some defendants choose to be negligent, but some meet the negligence standard. In this equilibrium, some lawsuits are not meritorious (frivolous lawsuits), and some lawsuits are dropped, some are resolved out-of-court and some go to trial. We then use this framework to analyze the welfare effect of Punitive Damages, and to explore the effect of split-awards and caps on the probability that firms choose to be careful, the probability that frivolous lawsuits are filed, and the probability that a lawsuit proceeds to the award stage of a trial. Consistent with Katz (1990), we predict that caps increase the likelihood of frivolous lawsuits. Given that the defendant does not know the type of plaintiff it is confronting and that only in meritorious cases Punitive Damages are awarded, the likelihood that the defendant makes an out-of-court settlement offer is negatively related to the amount of the award. Then, a reduction in the award due to a cap will increase the expected payoff for a frivolous plaintiff, generating additional incentives to file lawsuits. Consistent with Babcock and Pogarsky (1999) and Daughety and Reinganum (2003), we also find that caps and split-awards decrease the likelihood of trial. Furthermore, caps and split-awards reduce the likelihood that a firm chooses to be careful, because they lower the expected litigation costs. The firm reacts to these lower expected costs by reducing expenditures on safety. Finally, we find that the overall welfare effect of these reforms is ambiguous, because the reduction in the litigation costs of meritorious plaintiffs and defendants may be offset by an increase in the number of frivolous lawsuits and the likelihood of accidents.
Jill Wieber Lens - One of the best experts on this subject based on the ideXlab platform.
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defective Punitive Damage awards
Utah law review, 2017Co-Authors: Jill Wieber LensAbstract:Private redress theories of Punitive Damages recognize an individual victim’s right to be Punitive. That right exists because the defendant knew its conduct would probably cause the victim a severe injury, yet the defendant still acted, willfully injuring the victim. The injured victim can seek and obtain Punitive Damages to punish the defendant for disrespecting her rights. This Article is the first to apply private redress theories of Punitive Damages to claims involving a defective product. This application is unexpectedly difficult because of the importance of evidence of harm to nonparties in establishing defect, and because the defendant’s knowledge of the probable injury was not specific to the injured victim but instead general to all potential victims. Absent special circumstances, the manufacturer disrespected each of the injured victims in the same way. Consistent with private redress theories, each injured plaintiff can seek punishment for that disrespect. But the disrespect is not unique and each injured plaintiff should receive an identical Punitive Damage award.
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procedural due process and predictable Punitive Damage awards
BYU Law Review, 2011Co-Authors: Jill Wieber LensAbstract:In Exxon Shipping Co. v. Baker, the Supreme Court’s most recent opinion on Punitive Damage awards, the Court declared that the real problem with Punitive Damage awards is their “stark unpredictability.” The Court abandoned all hope that common law jury instructions could produce predictable Punitive Damage awards. Instead, the Court suggested pegging Punitive Damage awards to compensatory Damage awards. So far, analysis of the opinion has been minimal, likely due to the purported maritime law basis of the holding. Exxon should not be overlooked, however, as it signals a resurgence of procedural due process as a basis for challenging Punitive Damage awards — a type of challenge the Court has not heard since the early 1990s. Predictability of the amount is no different than fair notice of the likely severity of an award, which procedural due process requires. If common law jury instructions cannot produce predictable Punitive Damage awards, they also cannot produce awards consistent with the notice procedural due process requires. The Court’s Exxon pegging solution will not produce predictable awards (and ones that comply with procedural due process) because it relies on compensatory Damages, which are inherently unpredictable. As an alternative, this Article suggests looking to restitution, a non-controversial Punitive, civil remedy. Basing Punitive Damages on the defendant’s gain would produce predictable awards—as procedural due process requires.
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Punishing for the Injury: Tort Law’s Influence on the Constitutional Limitations of Punitive Damage Awards
2010Co-Authors: Jill Wieber LensAbstract:The limitations on a Punitive Damage award depend on the conception of Punitive Damages. Is it a private law remedy, limited to resolving the dispute between the parties? Or is it a public law remedy, capable of addressing public harm and achieving public good? The Supreme Court has not wavered from public law ideas of Punitive Damages - that the Damages serve the state’s interests and are similar to criminal punishments. At the same time, the Court has focused on the actual injury to the plaintiff in its holdings and prohibited Punitive Damages from punishing harm to nonparties, indicating that Punitive Damages serve only the private law purpose of resolving the parties’ dispute. This Article examines tort law’s influence on the constitutional limitations of Punitive Damage awards, an influence that mandates a private law conception of Punitive Damages. Tort law lacks the ability to punish unless a finding of liability for an underlying injury exists. Punitive Damages should thus be based only on the underlying injury for which the defendant is liable. Consistent with tort law’s influence, Punitive Damages that punish the public harm that the defendant’s conduct created would be unconstitutional, meaning that Punitive Damages will be minimal if supported only by an award of nominal Damages. Also consistent with tort law’s influence, Punitive Damage awards must be personalized to the individual dispute despite the Court’s recent concerns about unpredictability.
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punishing for the injury tort law s influence on the constitutional limitations of Punitive Damage awards
2010Co-Authors: Jill Wieber LensAbstract:The limitations on a Punitive Damage award depend on the conception of Punitive Damages. Is it a private law remedy, limited to resolving the dispute between the parties? Or is it a public law remedy, capable of addressing public harm and achieving public good? The Supreme Court has not wavered from public law ideas of Punitive Damages - that the Damages serve the state’s interests and are similar to criminal punishments. At the same time, the Court has focused on the actual injury to the plaintiff in its holdings and prohibited Punitive Damages from punishing harm to nonparties, indicating that Punitive Damages serve only the private law purpose of resolving the parties’ dispute. This Article examines tort law’s influence on the constitutional limitations of Punitive Damage awards, an influence that mandates a private law conception of Punitive Damages. Tort law lacks the ability to punish unless a finding of liability for an underlying injury exists. Punitive Damages should thus be based only on the underlying injury for which the defendant is liable. Consistent with tort law’s influence, Punitive Damages that punish the public harm that the defendant’s conduct created would be unconstitutional, meaning that Punitive Damages will be minimal if supported only by an award of nominal Damages. Also consistent with tort law’s influence, Punitive Damage awards must be personalized to the individual dispute despite the Court’s recent concerns about unpredictability.
