Damage Awards Research Articles

Damages to Deter Police Shootings

Many fatal shootings by police are not warranted. These shootings impose losses on the victims and their families and also manifest an apparent failure of existing administrative and legal restraints to deter these unwarranted shootings. This Article proposes a revamping of existing incentives to both provide more adequate compensation to the victims’ families and to establish levels of deterrence that are sufficient to curtail unjust fatalities. There are legal criteria for what level of force is “reasonable,” but determining reasonableness in practice may be difficult. Practical guidance such as the “21-foot rule” for the threat to warrant a shooting is often problematic. The extent to which there is a problem of wrongful deaths resulting from police shootings is difficult to ascertain based on governmental statistics, which understate the total level of these killings. The Washington Post’s Fatal Force dataset of on-duty fatal police shootings seeks to rectify this informational gap, providing a list of almost 1,000 fatal police shootings annually since 2015. This inventory also provides facts from public reports of the shootings, including how the shooting conforms to pertinent legal criteria of whether the victim was armed or fleeing the scene. Even if the police shooting was not warranted, there may be both legal and practical barriers to obtaining compensation for the victim’s estate from the municipality. Some of the relatively high profile cases have received compensation that is in line with compensation levels in wrongful death cases generally. However, except for some very rare exceptions, the compensation amount is well below the value that the government places on reducing mortality risks through government regulations. As a result, the compensation falls short of the levels needed to provide adequate deterrence to reduce these killings. To provide sufficient incentives, this Article proposes that the total level of damages for police shootings be consistent with the value of a statistical life used by government agencies when monetizing mortality risk reductions for government regulations. This value is now in the $10 million range per expected fatality. Such amounts are too high from the standpoint of setting conventional compensatory damages levels, but they provide a pertinent reference point for setting punitive damages and the total level of damages needed to establish appropriate levels of deterrence. The proposed trigger for such award levels is when the officer has displayed a callous disregard for the rights of others or if other punitive damages criteria are met. In the absence of such punitive damages awards, monetizing the expected risks that can be prevented through improved police practices can be accomplished by using the value of a statistical life to guide police practices. Unlike the current low level of settlements and awards for police shootings, this approach provides appropriate guidance to municipalities to monetize fatality risks and to undertake benefit-cost analyses of policies to reduce unreasonable police shootings. There have been recent calls for more benefit-cost analysis of policing, including the use of force, although the costs to the victims from police use of force have served as a barrier to such analyses. This Article overcomes this barrier by using the value of a statistical life as an empirically-validated measure of the most direct cost of fatal use of force. This approach provides the basis for calculating the first monetized estimate of the cost of police shootings. This Article calculates the aggregate monetized value for the loss of life from all police shootings from 2015 to 2018, which is $39.3 billion. If the shootings are restricted to those in which the victim was either unarmed or fleeing, the total mortality cost is $12.1 billion. Of this amount, the total mortality cost is $2.55 billion for victims who were both fleeing and unarmed. Disincentivizing these shootings is a critical step for courts to deter police shootings and promote effective policing.

Reform and Adaptation: The Experience of the Americas with International Investment Law

Abstract Over the last two decades Latin American States have been deluged with investor-State dispute settlement (ISDS) with double-digit cases, and billion-dollar damages awards. These States have sought to regain control of the narrative by embarking on various reform initiatives. This article first sets the scene with a brief review of the experience of Latin American States with investment arbitration over the last two decades, then examines the efforts undertaken in the last few years by Latin American States to gain control over their investment arbitration experience. This has been done on a bilateral, regional and supra-regional level. Reforms including the revisions of substantive provisions, as well as the development of regional arbitration fora are examined. Finally, it offers some thoughts on the prospects for the region’s reform movement.

Are Circuit Courts Right to Deny Jurors the Ability to Set Punitive Damages?: The Curious Case of Marla

2019 was a strange year. One of its strangest cases was decided only a month ago. The case—Saccameno v. Ocwen—involves a dizzying nightmare of facts. The jury thought the ordeal, which caused the plaintiff to develop severe mental illness, merited $3,000,000 in punitive damages. The 7th Circuit disagreed with both the jury and the district judge, partly because (it said) the reprehensibility analysis used to determine the constitutionality of punitive damage awards takes a plaintiff's deteriorating physical but not mental state into account. In doing so, it lowered the award to produce a 1:1 ratio of punitive to compensatory damages—$582,000. Although it may have been legally correct, the 7th Circuit's decision highlights a troubling trend in American law—one undermining the Seventh Amendment—wherein judicial elites instead of juries, our most democratic institution, are empowered to decide punitive damages awards.

Numeracy in the jury box: Numerical ability, meaningful anchors, and damage award decision making

SummaryThis project employs an experimental design to test theoretical predictions regarding how numeracy can assist jurors in determining damage awards to compensate a plaintiff for pain and suffering and how the use of meaningful numerical anchors may produce similar benefits. Mock jurors (N = 345) reviewed a legal case and were asked to give a dollar award to compensate the plaintiff for pain and suffering. The presence and nature of a numerical anchor and the duration of pain and suffering were manipulated. Participants' numeracy was measured. Results provided support for predictions. Jurors higher in numeracy gave awards that more appropriately reflected the duration of pain and suffering and showed less variability in awards. Similar benefits were obtained by exposing jurors to meaningful numerical anchors to help them contextualize dollar amounts. Thus, introducing meaningful anchors to jurors may provide similar benefits to numeracy, without the drawbacks associated with selecting only numerate jurors.

The Enforcement of Punitive Damages Awards Between United States and Europe: An Introduction for U.S. Practitioners

This article’s objective is to introduce U.S.-based practitioners to European civil-law perspectives on whether U.S. punitive damages awards are enforceable in their jurisdictions. After a brief review concerning the birth of punitive damages within common law, valuable to better understand their cultural and legal significance, this article will outline how the prominent European jurisdictions — France, Germany, Italy, Spain, and Switzerland — have dealt with the enforcement of U.S. punitive damages awards. Through each jurisdiction’s policy principles and relevant law, this article aims to afford U.S.-based practitioners initial tips and litigation strategies about how to maximize their chances of enforcing a U.S.-obtained judgment in one of the analyzed foreign jurisdictions. In a globalized world, interconnected largely through international transactions, disagreements about punitive damages can no longer be treated merely as a product of history or culture. This difference impacts how (and if) transnational disputes are resolved. When a defendant is foreign, or when a defendant’s assets are abroad, U.S.-based attorneys must be aware of the current European trends about the enforcement of United States punitive damages awards when assessing civil litigation strategies. In preparing a litigation plan, lawyers must remain mindful of their clients’ primary interest: not to obtain a favorable judgment, which is nothing more than a legal fiction, but to secure from that judgment an actual, tangible result that can be obtained only through governmental enforcement mechanisms. Absent the prospect of enforcement, a judgment with no execution is nothing more than an expensive piece of paper.

Knick and the Elephant in the Courtroom: Who Cares Least About Property Rights?

One of the first cases to be argued in the Supreme Court’s 2018-19 term, and one of the last decided, Knick v. Township of Scott overruled a 1985 decision, Williamson County Regional Planning Commission v. Hamilton Bank of Johnson City, that required most regulatory takings claims against state and local governments to be filed in state court. Under the new procedural guidelines set forth in Chief Justice Roberts’ majority opinion in Knick, property owners claiming a violation of their rights under the Fifth Amendment’s Takings Clause can file suit for compensation directly in federal court. Although analysts and practitioners differed sharply on the wisdom and doctrinal justification for this change, all agreed that allowing takings plaintiffs access to federal court would result in a marked increase in the number of successful takings claims, resulting in significant new financial liability for overly zealous land use regulators. This Article examines that assumption and finds little support for it in the historical record. Even before Williamson County was handed down, many federal judges were adamant that they had no interest in adjudicating disputes arising from local land use policies. When such cases were nevertheless filed in federal court, they were routinely shunted to state court under the guise of abstention, even at the cost of ignoring the stated criteria of the various abstention doctrines. Finally, when federal takings claims have managed to avoid both Williamson County and abstention, they have seldom prevailed on the merits, and the few that have received awards of damages in the district courts have frequently been overturned on appeal. Whether property owners will find federal courts more hospitable to takings claims now than they were before Knick remains to be seen, but such an outcome can hardly be taken for granted.

科创板下的惩罚性赔偿制度研究

科创板下的惩罚性赔偿制度研究

Reporting Sexual Misconduct in the #MeToo Era

We model the reporting of sexual misconduct. Individuals under-report misconduct due to strategic uncertainty over whether others will report and corroborate a pattern of behavior. Under-reporting occurs if and only if misconduct is widespread. Making sanctions more responsive to reports, raising public awareness of misconduct, implementing confidential holding tanks, and appropriately calibrating damage awards can encourage reporting. However, we also show when such policies are ineffective or backfire. Managers may avoid mentoring subordinates, spilling over into reporting. A holding tank may discourage reporting by raising the bar to access reports. Overall, we highlight several unintended and intended consequences of #MeToo.

A vindicatory approach to tortious liability for mistakes in assisted human reproduction

AbstractMistakes in assisted human reproduction procedures such as IVF, egg, sperm and embryo donation are surprisingly common, but tortious liability for such mistakes has not been addressed in the courts of England and Wales, or Ireland. This paper presents an argument in favour of a vindicatory approach to tortious claims arising from mistakes, where the claimants are the parents of the resulting, healthy, child. Drawing on the analogous tort of wrongful pregnancy, the paper provides a vindicatory account of the case of Rees v Darlington Memorial Hospital, and argues that Rees signposts the correct approach for tortious claims arising from mistakes in assisted human reproduction. It is argued that while the law should not compensate ‘loss’ flowing from the birth of a child, parents should be entitled to an award of damages to vindicate their right to reproductive autonomy. The paper explores vindication of the right to reproductive autonomy through the tort of negligence, but argues that vindication may be more effectively achieved through the creation of a separate tort which is actionable per se, strict liability, and expressly focused on vindication rather than compensation.

Errors in Estimating Patent and Class Action Damages

Patent and false advertising damage awards are in disarray. Courts are imposing astronomically inflated awards that overcompensate companies for the infringement or deceptive practices. The culprit is the Choice Based Conjoint method—a survey based statistical method which seeks to estimate how much consumers value individual features of a product. Originally coming from marketing scholarship, this methodology has become the prevailing method federal courts use to calculate damages in these cases. And it is being consistently misused. This article is the first to highlight this misapplication and use empirical methodology to explain why the method leads to exaggerated damage awards. The problem is that courts—when deploying this methodology—mistakenly only include patented (false advertised) features in the survey design and neglect to add other key non-patented features. This creates the impression that products are only made up of their patented elements, which naturally overestimates the value of these elements. Doctrinally, patent damages seek to compensate parties only for the value of the patented feature as opposed to the full product. This article realigns this statistical method so that all relevant features are included within the survey model and courts are better equipped to impose more precise awards that actually compensate for the infringement and false advertisement.

Assessing the Damage: Money Awards by the OHRT in Sexual Harassment Cases

Individuals who experience sexual harassment in employment, housing, education, or other social services in Ontario may be entitled to a general damages remedy under section 45.2 of the Ontario Human Rights Code. The Ontario Human Rights Tribunal conducts an objective analysis of the severity of the harasser’s conduct and a subjective analysis of the impact of the incident on the applicant. Generally, the more severe the conduct or impact on the applicant, the higher the award for general damages. Due to an expectation that individuals will appear traumatized after enduring sexual harassment, an applicant’s failure to produce evidence of distress or traumatization will often adversely affect his or her entitlement to higher damage awards. This paper argues that the requirement to produce medical proof is an unwarranted invasion of the individual’s right to medical privacy, unjustly imposes an additional evidentiary burden upon the applicant, and perpetuates the myth surrounding sexual assault that trauma is visible and uniform.

The Sun Behind the Clouds? Enforcement of Renewable Energy Awards in the EU

AbstractA number of European Union (EU) countries have undertaken thorough reforms in the renewable energy sector over the past years. The regulatory changes have triggered a wave of claims from low-carbon investors asserting that the reforms have diminished or exhausted the economic viability of their investments. Unlike local investors, who typically take legal action before domestic courts, foreign investors have filed arbitration claims in accordance with the Energy Charter Treaty, notably against Spain, Italy, Bulgaria, and the Czech Republic, resulting in several awards of damages. However, recent developments in EU state aid law seem to restrict the ability of investors to obtain compensation. This article argues that such developments may undermine renewable energy policy, because arbitration enhances the regulatory stability and predictability which low-carbon investments require only if arbitral awards can be enforced effectively. The article examines the different scenarios that may arise out of the interplay between EU law and investment arbitration in the EU and concludes that the European Commission's arguable redrawing of the boundaries of state aid rules to encompass investment arbitration, combined with the EU's general quest to replace investment arbitration with alternative mechanisms of adjudication, may jeopardize climate change mitigation policies.

Decision‐making in civil litigation: Effects of attorney credibility, evidence strength, and juror cognitive processing

AbstractThe current study examined the relationship between juror cognitive processing (measured by need for cognition [NFC]), attorney credibility, evidence strength, and civil litigation verdicts (liability, likelihood of causation, and compensatory damages). Participants (N = 446) viewed a videotaped mock civil trial in which the credibility of the attorneys and the strength of the plaintiff's evidence were manipulated. Plaintiff attorney credibility, defense attorney credibility, and strength of evidence interacted with one another for liability verdicts. In the strong evidence condition, the likelihood of a liable verdict was higher for a credible plaintiff attorney than a non‐credible plaintiff attorney when facing a non‐credible defense attorney. In the ambiguous evidence condition, the likelihood of a liable verdict was higher for a credible plaintiff attorney than a non‐credible plaintiff attorney when facing a credible defense attorney. Plaintiff attorney credibility, however, was found to be more influential on jurors’ decision‐making than case evidence for likelihood of causation and compensatory damage award decisions. Participants’ NFC also interacted with plaintiff attorney credibility. High NFC jurors were more influenced by a credible plaintiff attorney than low NFC jurors. Although these findings are counter to common findings in the NFC literature, they conform to a body of literature that supports the notion that jurors view attorney credibility as a piece of case evidence and not a peripheral cue as is often assumed. Thus, the findings indicate that attorneys do matter to the outcomes of cases. Policy and practice implications for attorneys and the courts are discussed.

Cryostorage failures: a medicolegal review.

To heighten awareness of the potential legal and financial burdens faced by those providing cryopreservation storage services of embryos and gametes in light of recent lawsuits involving inadvertent thawing of specimens. Case law review of US legal databases and courthouse dockets with a focus on lawsuits against reproductive endocrinologists and cryostorage facilities offering cryopreservation. Emphasis was placed on court decisions, awarded damages, and legal and media coverage related to cryostorage failure events. Lawsuits pertaining to two notable ongoing cases of cryostorage failure that occurred at fertility clinics in the US in 2018 were reviewed. Media coverage of these events and plaintiff and defense attorney strategies were evaluated. Legal documents from previous, similar cryostorage failures were also reviewed. Common claims in cryostorage system failures include breach of contract and negligent handling of property. Facilities offering cryostorage services are vulnerable to significant burden, legally and financially, if they are to experience a storage system failure. Providing cryostorage services is not without significant financial risk. Inadvertent thawing of specimens can lead to high damage awards against cryostorage facilities and those individuals linked to a cryostorage failure event. Because monetary damages can surpass insurance policy limits, those providing cryostorage services should be aware of plaintiff attorney strategies, common legal defenses, and basic asset protection principles to safeguard themselves if ever faced with these situations. Facilities should also carry out regular maintenance and safety checks on equipment and alarm structures to deter such events.

Montgomery and its impact on current medical practice - good or bad?

Patient autonomy requires full disclosure prior to a valid consent. The 2015 UK Supreme Court ruling in Montgomery has displaced Bolam on this issue and is inducing a disquieting sense of angst in some medico-legally conscious clinicians. For the time being, the Bolam test still applies for treatment and/or diagnosis claims. The very grossness of the defendant in Montgomery's withholding of information to the patient (remarkably not thought negligent by the lower courts) prompted the judges of the Supreme Court to dispense with the long-standing Bolam test. (The Editor considers the case should have been won using Bolam in any event.) The foreseeable shoulder dystocia that caused catastrophic injury to the claimant's baby would (and should) have been avoided by a planned caesarean section. The claimant's damage award of £5.25 million as a result of the defendant's obstetrician's failure to provide full disclosure seems to have induced clinicians to over-watch their step, at times to a ridiculous extent. On the one hand, many clinicians' anxiety may result in a defensive/protective approach: 'These are the facts, now you choose', thus leaving a sense of hurtful abandonment in patients. Much harm may be done within Medicine if the facts underlying the decision in Montgomery are not properly considered and evaluated.

The optimal adjustment to liability when litigation is costly: A note

We show that the optimal liability award with variable litigation costs may be either larger or smaller than the sum of the victim's harm and litigation costs. The reason is that there are two countervailing effects at play. On the one hand, larger damage awards lead to increased litigation expenditures, which have a dampening effect on optimal damages. On the other hand, variable litigation costs only make sense if the parties anticipate a gain from expending litigation effort, which necessarily translates into a probability of plaintiff victory that is less than one. Consequently, the deterrence function of the trial is mitigated, justifying an upward adjustment in the optimal damage award. The optimal adjustment balances these two effects.

Stigma against false confessors impacts post-exoneration financial compensation.

False confessors are stigmatized more than other exonerees. Traditional theories of stigma suggest that this difference may result from confessors being seen as more responsible for their own wrongful conviction. In the current study, we examined an important tangible consequence of stigma against false confessors-namely, that it might impede their ability to win financial restitution in post-exoneration civil lawsuits. Mock jurors (N=129), recruited online, read a case summary in which an exoneree is seeking damages after being wrongly convicted due to a false confession or eyewitness misidentification, which either did or did not result from police misconduct. When the exoneree falsely confessed in the absence of police misconduct, mock jurors rated him as most responsible for his own conviction and expressed the most doubt over his actual innocence. Contrary to legal criteria, they also awarded him smaller compensatory and punitive damage awards. Notably, the false confessor was seen as more responsible than the misidentified exoneree even if his interrogation was highly coercive. In turn, false confessors who were seen as more responsible received smaller damage awards. Implications for trial procedure and exoneree compensation are discussed.

Legal review of the civil, criminal, and administrative consequences of informed consent violation in medical practice

Introduction: The informed consent (IC) ensures respect of the patient's rights to information, freedom, and autonomy. However, when the physician neglects the obligation to inform, legal consequences may follow, including the award of damages or even imprisonment. Objective: To analyze the legal implications for a medical practitioner who fails to obtain the patient's IC. Methodology: Based on the relevant jurisprudence and legal decisions. With regards to the former, the decisions and legal precedents of the Colombian High Courts with regards to IC and medical practice were studied, emphasizing the rulings of the State Council and the Supreme Court of Justice (civil and penal chambers). With regards to the legal decisions, the analysis enabled the review, systematization and interpretation of the discussions generated around the topic of interest, pursuant to the doctrine or research on civil administrative, and criminal law. Results: There is consensus in the Colombian jurisprudence about the liability of the healthcare professional and of the state when the IC or any of its component parts is missing in the doctor-patient relationship. Nevertheless, there are different standpoints, particularly in the criminal arena, where a lack of unanimity exists with regards to this issue. Conclusion: Any violation of the IC or the lack of an IC, could give rise to the practitioner's civil liability and disciplinary actions, in addition to the administrative liability of the State, but there should be no criminal liability for the physician.

A Functional Approach to Municipal Policymaker Determinations in Section 1983

Debtors’ prisons are alive and well in America despite being deemed unconstitutional. Indigent defendants often find themselves caught in a cycle of unconstitutional bail, fines, and fees that ultimately may land them in jail with no consideration of their indigence. These indigent defendants have a route to relief through Section 1983 which provides a federal forum for those plaintiffs deprived of federally protected rights by state actors. Unfortunately, awards of money damages, while possible, are often out of reach. The primary problem this paper addresses concerns municipal policymaker determinations. In short, the plaintiff may pursue money damages against a municipality, but he often must show that the action which deprived him of his constitutional right was made by a municipal policymaker. The issue is that the indigent defendant is jailed through a judicial order. This means he would need to show the municipal judge acted as a municipal policymaker in order for the municipality to be liable. In making policymaker determinations, courts look to state law. If the applicable state law defines a municipal judge as part of the state judiciary, then the judge cannot be a municipal policymaker. This formulaic determination often prevents the indigent plaintiff from connecting the unconstitutional judicial order to the municipality, which in turn prevents the plaintiff from receiving money damages from the city. While at first glance this may seem like a fair disconnect in order to protect the independence of the local judiciary, the reality is that it may ignore the way in which some municipalities actually operate. To explain, local judges are often hired and fired by the city, and recent cases reveal the pressure that some cities put on judges to fund their own courts through fine and fee imposition. With this in mind, municipal judges may actually come to set municipal policy, and policymaker determinations should reflect that. This paper proposes a solution — a functional approach to policymaker determinations. Instead of simply relying on statutory definitions of judges, courts should look to the actual functions the judge is performing. If the judge is acting under the municipality’s authority and subject to the municipality’s influence, then in consideration of the judge’s actual function within the municipality, he should be considered a policymaker for the locality. With this functional approach, plaintiffs would be able to pursue money damages and connect the unconstitutional judicial orders to the responsible municipality.

Collective Certification in UK Competition Law: Commonality, Costs and Funding

The UK introduced a new regime for opt-out ‘class’ or collective actions in 2015. These require certification before they proceed to trial to establish whether the members of the class have sufficient ‘common interest’. The certification of the first two collective actions – Gibson v. Pride Mobility Products and Merricks v. Mastercard – were dismissed by the Competition Appeal Tribunal (CAT). Here a critical assessment of the UK’s emerging collective certification process is undertaken focusing on the determination of common issues, pass on, distribution of damages, costs and funding. It is argued that the CAT has applied the test for certification too strictly and not in accordance with the case law surrounding the ‘Canadian model’ on which the UK certification procedure is based; and incorrectly treated the award of aggregate damages as the summation of individual damages. The way the CAT has handled these two factors threatens to undermine the purpose and effectiveness of the UK’s new collective action regime.