Damage Awards Research Articles

Xenophobia in Juror Decision-Making

Abstract With the upsurge of anti-globalizing ideologies and politics, the increasing institutionalization of xenophobia within the legal system has emerged as a pressing concern. Existing law and social science research has underexplored xenophobic bias in the US legal system. This article conceptualizes xenophobic bias as consisting of racism and nationalism. It investigates whether mock jurors reach different verdicts on defendant companies from foreign countries of origin (Japan, France, and China) compared to domestic (US) companies. Using a test simulating a patent lawsuit, the research finds no evidence of general xenophobic bias in juror liability verdict decisions, yet there is a specific bias against the Chinese company when granting damage awards. The similarity-leniency effect that has been established in the previous literature is corroborated in this article. Additionally, political views moderate the effects of the company’s country of origin on juror decisions. This research offers a more nuanced conceptual framework of xenophobic bias in juror decision-making for future law and social science research and informs judicial policies seeking to improve jury instructions and jury selection to reduce xenophobic bias.

Commutative and Retributive Justice in the Administration of Disgorgement in Insider Trading Cases—the Case for the Common Law Approach to Damages

Using Zambia as a case study, this article examines the efficacy of the Zambian regulatory and institutional framework for public distribution of securities in ensuring commutative justice in the administration of disgorgement by the Securities and Exchange Commission. Using the doctrinal and non-doctrinal approaches to examining the effectiveness of regulatory rules and institutions, the main findings of the study are: When it is applied to non-corporate insider traders, the statutory formula for disgorgement which is provided in the Zambian Securities Act 2016 tends to under-regulate by leaving some of the insider trading gains with the insider trader—a commutative injustice to the public; When it is applied to juristic persons (companies and other styles of bodies corporate), the formula for disgorgement which is provided in the Zambian Securities Act 2016 tends to over-regulate by taking away from the insider trader more than they actually gained from insider trading—a retributive and commutative injustice to the insider trader. The central argument of this article is that regulatory rules and institutions which promote retributive and commutative justice are likely to inspire social willingness to pay the cost of socioeconomic exchanges and regulation, and as such, are efficient. As a possible way of promoting commutative and retributive justice in the administration of disgorgement in insider trading cases, the article makes a case for the application of ‘the common law approach to the award of damages’ in the determination of the amount which is to be disgorged. The article also makes proposals for the repeal of the statutory formula, and its replacement with the standard formula for disgorgement which has been proposed.

OF WAR AND INTERNATIONAL INVESTMENT LAW

AbstractIn the past decade, the practice of investor–State arbitral tribunals addressing investment protection in the context of armed conflict and military occupation has expanded. This has prompted a growing interest in the relationship between international investment law and international humanitarian law (IHL), two regimes with markedly different relationships to war—IHL more pragmatic and international investment law more idealistic. This article argues that, while its lack of pragmatism might render international investment law ineffective in changing how war is conducted, it is the regime under which States are most likely to be held liable for the conduct of war. This is a result of its more robust primary obligations, more effective enforcement mechanisms and large awards of damages. Nevertheless, comparing international investment law and IHL does also reveal some similarities—the legacy, it is argued, of a time when the laws of war were more about protecting private property and neutral commerce than civilians. Putting these two regimes together in this way exposes international law's uneven distribution of protection in war.

Injunctions and damages for patent infringement under the UPCA in light of the principle of proportionality—Part II: damages

Abstract This article examines the availability of injunctions and the award of damages for patent infringement under the Agreement on a Unified Patent Court (UPCA), in light of the principle of proportionality. Part I, published in the previous issue, focused on injunctive relief and analysed the application of the principle of proportionality to injunctions, outlining key factors and scenarios. Part II discusses the principles and methods applicable to the calculation of damages, assessing their suitability in light of the principle of proportionality, as defined in European Union law and in the case law of select contracting states.

The power of meaningful numbers: Attorney guidance and jury deliberation improve the reliability and gist validity of damage awards.

A mock jury experiment tested the effects of attorney guidance and jury deliberation to mitigate the challenges that civil juries face in assessing damages. We hypothesized that two types of attorney guidance (per diem, per diem + lump sum), theoretically based in the Hans-Reyna model of jury decision making, would improve jury decision making compared with no guidance against five key benchmarks: injury assessment, validity, reliability, verbatim-gist coherence, and metacognitive experience. We expected that deliberation would increase reliability of, confidence in, and polarization of awards compared with predeliberation. Community members (N = 317; 61% women; 86.1% White; Mage = 48.68 years) deliberated in 54 mock juries. Participants watched a videotaped trial involving an automobile accident in which two plaintiffs sustained concussions (one mild and one severe). The plaintiffs' attorney's closing arguments varied attorney guidance (no guidance, per diem, per diem + lump sum). Mock jurors provided individual judgments before deliberating as a jury and reaching group verdicts and awards. Juries performed well against benchmarks. Providing gist-based guidance with a meaningful award recommendation increased the validity of jurors' individual damage awards (η²p jurors = .03) and the reliability of jury damage awards (η²p jurors = .04; η²p jurors = .20); gist-based guidance without an award recommendation did not improve performance against benchmarks and increased perceptions of decision-making difficulty (η²p = .13). Deliberation increased reliability of (η²p = .17), confidence in (η²p = .02), and polarization of (d = 2.14) awards compared with predeliberation. Juries performed well against objective benchmarks of performance (injury assessment, validity, reliability, and verbatim-gist coherence), and deliberation improved performance compared with predeliberation decisions. Jury decisions were further influenced by attorney closing arguments (the guidance manipulation), especially when the attorney requests a lump sum, which can serve as a powerful influence on jury awards, mainly by setting an upper limit. (PsycInfo Database Record (c) 2024 APA, all rights reserved).

Injunctions and damages for patent infringement under the UPCA in light of the principle of proportionality—Part I: injunctions

Abstract This article examines the availability of injunctions and the award of damages for patent infringement under the Agreement on a Unified Patent Court, in light of the principle of proportionality. Part I focuses on the injunctive relief and analyses the application of the principle of proportionality to injunctions, outlining key factors and scenarios. Part II, which will be published in the next issue, discusses the principles and methods applicable to the calculation of damages, assessing their suitability in light of the principle of proportionality, as defined in European Union law and in the case law of select contracting states.

Non-practicing entities in Europe: an empirical analysis of patent acquisitions at the European Patent Office

Abstract This paper delves into the proliferation of non-practicing entities (NPEs), a hot topic in academia and public policy, especially in the United States. The common belief is that Europe is less exposed to NPEs due to a robust patent system, higher enforcement costs, and smaller damage awards. Yet, using a new database of NPE patent applications at the European Patent Office (EPO), the study uncovers that NPEs activity in Europe is arising: they own nearly 20,000 EPO patents, primarily in Electrical Engineering. Moreover, we contribute the literature investigating the heterogeneity of the NPE business model and its relationship with the characteristics and use of the patents they target. Our econometric analysis provides threefold original evidence. First, NPEs with higher propensity for litigation (i.e., “Litigation” NPEs) acquire patents with higher infringement risk but similar technological quality than practicing entities. Second, patent aggregators (i.e., “Portfolio” NPEs) and technology companies (i.e., “Technology” NPEs) acquire higher-quality patents compared to those acquired by practicing entities. Third, patent acquisitions by “Litigation” NPEs and “Portfolio” NPEs reduce the subsequent use of protected technologies.

Reducing Officer, Director, and Company Exposure to Patent Infringement Damage Awards

Reducing Officer, Director, and Company Exposure to Patent Infringement Damage Awards

The Effects of Decoupling Damage Awards On Financial Reporting and Auditing

The Effects of Decoupling Damage Awards On Financial Reporting and Auditing

Supplemental Material for The Power of Meaningful Numbers: Attorney Guidance and Jury Deliberation Improve the Reliability and Gist Validity of Damage Awards

Supplemental Material for The Power of Meaningful Numbers: Attorney Guidance and Jury Deliberation Improve the Reliability and Gist Validity of Damage Awards

Liability in nuisance: Fearn v Board of Trustees of the Tate Gallery [2023] UKSC 4

The author discusses the recent Supreme Court case of Fearn v Tate Modern Galleries. In Fearn, the court was required to determine whether the defendants’ allowing visitors to the viewing gallery, which was situated at the top of the Tate Modern, to stare into domestic flats, which were situated close to the Tate, constituted a nuisance in law. The claimants flats’ were of an unusual design, in that the external walls which faced the Tate, were constructed entirely of glass, thereby allowing visitors to the Tate to stare into the interior of the flats. By a bare majority, the court held that such a use of the defendants’ premises ranked as a nuisance. Whereas the majority of the court upheld the traditional view, that for a claimant to succeed in a nuisance action, the use of the defendant’s land required to be unreasonable, in order to determine whether that use was unreasonable, one was required to ascertain whether the defendant’s use of land had caused substantial interference with the ordinary use of the claimant’s land. However, in turn, the claimant could not complain if the use which was interfered with was not an ordinary use of that land. The court held that the use of the viewing gallery had caused a substantial interference with the ordinary use and enjoyment of the claimants’ property.
 The majority of the Supreme Court concluded that both lower courts had erred by laying store by the fact that the use of the viewing gallery was of public benefit. However, public interest was a factor which required to be addressed only when the court was ascertaining whether to grant an injunction or an award of damages.
 The author argues that the dissenting judgement of the court is to be preferred over that of the majority, most importantly for the following reasons. It may be difficult first, to determine whether the defendant’s use of land deviates from the norm, and therefore does not rank as a ‘common and ordinary’ use of land, and secondly it may prove difficult to weigh such user of land against that of the claimant. The author argues that the test of reasonableness as a test for liability in nuisance, as hitherto employed by the courts, is more conducive to clarity. The traditional test also allows the law to develop both coherently and incrementally, by considering the changing norms of society.

On the Role of Sales Taxes for Efficient Compensation of Property Loss Under Strict Liability

Abstract When a victim loses property due to an injurer’s wrongful act, it must be decided whether the damages award should include the sales taxes associated with the lost property’s replacement. This is especially acute when the victim can make other use of the damages award than replacement. This paper compares regimes that differ in how they treat sales taxes, focusing on possible distortions of consumption and care choices. We find that regimes that include sales taxes in damages awards only when incurred to replace the lost property (as, for instance, the German Civil Code does) induce suboptimal consumption and care incentives. Distortions of care incentives also depend on the nature of care expenditures (monetary or non-monetary).

Trial Selection and Estimating Damages Equations

Abstract Many studies have employed regression analysis with data drawn from court opinions. For example, an analyst might use regression analysis to determine the factors that explain the size of damages awards or the factors that determine the probability that the plaintiff will prevail at trial or on appeal. However, the full potential of multiple regression analysis in legal research has not been realized, largely because of the sample selection problem. We propose a method for controlling for sample selection bias using data from court opinions.

The Influence of Reasonableness in Determining Delictual or Tort Liability for Psychological or Psychiatric Harm in South African and English Law

Due to a lack of authority in Roman-Dutch law in respect of claims for psychological harm, our courts in South Africa relied on English law for guidance, in particular the tort of negligence where emphasis is placed on reasonable foreseeability of harm. The courts in both jurisdictions generally face challenges with who exactly is entitled to claim, the quantification of the damages that should be awarded and how to limit delictual or tort liability emanating from these types of claims. South African law also followed English law in making the distinction between primary and secondary victims and as will be shown in this contribution, limiting liability in respect of secondary victims is problematic. The courts generally tread with caution in awarding damages for pure psychological or psychiatric harm and several policy considerations are taken into account when deciding to award damages or not. Nevertheless, as will be shown in this contribution, the courts in South Africa and the United Kingdom acknowledge these claims and have been developing the law around the cases that have come before them. What is rather interesting and prevalent though with regard to primary and secondary victim claims for psychological or psychiatric harm in these jurisdictions, is the implicit and explicit influence of "reasonableness" in determining delictual or tort liability for these types of claims. This will be explored further in this contribution.

Specificity of the Patrimonial Liability in Labor Law, as a Form of the Civil Legal Liability

Increasingly common in labor law disputes, the petitions regarding the award of non-material damages to applicant are subject to judicial review they are working to ensure full compensation in case of illegal conduct also in labor law. Despite the fact that the labor law does not protect and does not have as its object the non-patrimonial aspects of the parties, as repercussions on the injured person, the full reparation is ensured by repairing the moral suffering that is generated by the illegality, including with regard to the employment relationship. All the more we could say that the repair can also have a moral side in the conditions in which the parts of the employment relationship, especially the employee, invest his knowledge, time, and skills, elements related to his personality and attitude. The analysis proposed by that article seeks precisely to justify non-material damages, on the principles of tortious liability, in the context of contractual liability such as that in employment relationships, including the fact that it is possible to engage the employee's moral responsibility towards an individual employer.

Scienza, diritto e giustizia internazionale (Science, Law and International Adjudication). By Chiara Ragni

Often, international adjudication needs to confront science. This is particularly so within international legal disputes that concern environmental and/or health matters. Almost a century ago a panel of arbitrators in Trail Smelter was asked to determine the amount of compensation for the reduction in value of land which had been affected by sulphur dioxide gases. The Tribunal, to be able to award damages, had to rely on a ‘just and reasonable inference’, aware that ‘the result [could] be only approximate.’1 In time, these types of assessments have become more frequent, more complex, and more sophisticated. One could refer, for example, to the difficulty in fully understanding the various implications of the presence of certain substances in a river for the health of the organisms present therein. International adjudicators are asked to digest very technical information upon which to base their judicial reasoning or, as it was put by Judges Al-Khasawneh and Simma in their joint dissenting opinion in Pulp Mills, ‘to arrive at a basis for the application of the law to the facts as scientifically certain as is possible in a judicial proceeding.’2 But are adjudicators equipped to do so? How do they conduct such assessments?

Nuclear verdicts, tort liability, and legislative responses

The size of punitive damage awards has grown considerably over the years, giving rise to what has been termed “nuclear verdicts.” Such large dollar verdicts can have several adverse effects on companies, such as limited innovation, high out-of-pocket claims-related expenses, increased insurance premiums, and bankruptcy in severe cases. This article reviews the growth of nuclear verdicts, examines the details of some key cases that have resulted in large damage awards, and identifies some reasons for these verdicts. The impact of nuclear verdicts and the actions that are being taken to mitigate such verdicts, with a focus on legal strategies and state legislative activity, are also discussed.

Abortion, Full Faith and Credit, and the 'Judicial Power' Under Article III: Does Article IV of the U.S. Constitution Require Sister-state Enforcement of Anti-abortion Damages Awards?

Abortion, Full Faith and Credit, and the 'Judicial Power' Under Article III: Does Article IV of the U.S. Constitution Require Sister-state Enforcement of Anti-abortion Damages Awards?

Defensive versus evidence-based medical technology: Liability risk and electronic fetal monitoring in low-risk births

Technology-intensive birth practices are a hallmark of the overmedicalization of birth. For example, obstetricians routinely use continuous electronic fetal monitoring (EFM), even though this technology is not evidence-based, has a high rate of false positives, and does not improve outcomes in low-risk deliveries. Providers often argue that they must use EFM to protect themselves from malpractice liability, making it a form of defensive medicine. But does variation in actual liability risk contribute significantly to the use of non-evidence-based medical technology like EFM? This study uses multi-level logistic models to examine the effects of malpractice laws and lawsuits on EFM in low-risk births from 1995 to 2003. The models test the hypothesis that state-level variation in liability risk should influence the probability of EFM use. The models reveal that the probability of reporting EFM is higher when states artificially reduce liability risk by capping damage awards, suggesting that objective liability risk does not promote routine EFM and may deter it. In fact, caps on damages limit providers’ legal exposure without doing anything to encourage higher quality care. It is possible that states without tort reforms place greater emphasis on patient rights, safety, and quality of care. On the other hand, by reducing liability risk without encouraging improvements in quality, tort reform laws may inadvertently promote more technology use.

Damages Awards in International Investment Arbitration and the Question of Fair Compensation

When an arbitral agreement freely entered into between a host nation and a financially stronger multilateral foreign organization breaks down, arbitration is the acceptable mode of settlement of the disagreement. This is in line with the Nigerian Arbitration and Conciliation Act, which makes applicable the convention on the Recognition and Enforcement of Arbitral Awards (New York Convention) on awards made in Nigeria arising out of international commercial arbitration. The objective of this paper is to seek a balance between protecting foreign investments and shielding the economies of host States from destruction through award of excessive damages. The doctrinal approach of qualitative research methodology was adopted, which enabled the interrogation of previous literature that deals with the issue of fair compensation and the role equity should play in international investment arbitration. This library-based research focused on analysing primary data such as cases, statutes and conventions and secondary data in text form. The research methodology adopted helped describe and contributed to the understanding of the concept of damages awards in international investment arbitration and the place of equity in awarding damages. The paper concludes that applying equitable principles will help arbitral tribunals arrive at more appropriate equitable damages based on fair compensation. The implication of the study is that international investment arbitration tribunals may intentionally take into account the actual amount of money invested or expended towards a project in quantifying damages thereby endeavouring not to cross the line of fair compensation. Keywords: Damages awards, Equitable principles, Fair compensation, International investment arbitration, Justice DOI: 10.7176/JLPG/81-02 Publication date: November 30 th 2022