Money Damages Research Articles

Improving the persuasiveness of the noise consultant report—A critique and proposal

The author, a retired mechanical engineer and patent attorney, sat on an HOA Board that converted four tennis courts to 13 pickleball courts without installing the noise absorbing barrier recommended in three reports by two acoustical consultants. A nuisance lawsuit seeks an injunction to close the courts and money damages. Consultants study the pickleball noise and recommend mitigation options to the deciders. Deciders are laymen, such as city officials and HOA boards, unfamiliar with noise science and under pressure to meet the insatiable need for more pickleball courts. When mitigation is not implemented, or not successful, litigation ensues. Judge and jury become deciders. This paper starts from the premise that the consultant makes technically competent recommendations and is motivated to fully educate the lay deciders. We explore the communication gap between consultants and deciders. Proposals include embedding wav. noise files in the written report, reference to ANSI standards for highly impulsive noises, deference to the lack of research on health issues of long-term exposure to persistent repetitive impulsive noise. We introduce the missing metrics of “pickle pops per hour” and the “predictable worst case noise impact” occurring when intensively used courts are introduced into residential neighborhoods.

The risk of personal liability for money damages under the South African Companies Act, 2008 and the possible impact on nonexecutive directors

This article considers, critically, the risks associated with imposing personal liability for money damages under the South African Companies Act and the risks of willingness by non-executive directors to serve on the board of companies due to risks associated thereto. The article considers the legal position relating to liability as it is known under common law and as it was applied by the South African courts over the years. Further consideration is given to the legal positions of similar provisions in other jurisdictions practicing similar company law practices. The introduction of the provisions requiring imposition of monetary damages on directors in South Africa followed on a comparable practice globally, specifically, on those countries which share company law practices. However, it will be discussed what South African policymakers may possibly have not considered following the deliberations during the drafting stage – as was advised by the advisors who were appointed to carry out the drafting exercise. The impact of imposing money damages will be discussed and the use of other mechanisms to mitigate against the potential effect of the statutory provisions will be discussed. Through a detailed analysis of the rights associated with money damages, recommendations will be made on how to best deal with the effects of these provisions.

Commercial hostages in international business disputes

AbstractA “commercial hostage” or “debt hostage” situation involves a dispute between a foreign company and its local partner over such matters as payment, the closing of a local office or facility, the laying off of local employees, or the transfer or ownership of intellectual property. Rather than file a lawsuit seeking money damages or an injunction, the local partner takes extra‐judicial steps to detain the foreigner against their will, so as to pressure the foreign company into resolving the dispute. The local police may even actively assist the local partner by way of inaction when the foreign company asks for help. While this activity occurs in a number of countries, this study focuses on China. One challenge in studying commercial hostage situations is gathering enough cases to be able to gauge the factors that drive them. Stated differently, how can scholars shift the study of this important topic from the anecdotal to a data‐based approach? This study is an initial attempt to do just that—it mainly attempts to gauge the frequency of recent commercial hostage activity in the P.R.C. Secondarily, it sheds light on where that activity occurs, why, and the identity of its victims. To accomplish this, Freedom of Information Act requests were submitted to six Western countries (including the U.S.) with significant China trade. English and Chinese business and legal media reports were also searched for commercial hostage cases involving foreigners. Between these two sources, dozens of commercial hostage incidents were identified. The vast majority occurred in or near Tier 1 cities and/or coastal regions, a significant number involved foreign firms operating in the commodity goods space, and a disproportionate percentage involved ethnic Chinese. Building on these findings, we conclude by providing a risk assessment matrix that foreign businesspersons can use to evaluate the risk of travelling to the P.R.C. for business. As trade tensions rise between the U.S. and China, the importance of this issue and evaluating commercial hostage risk may only increase.

Qualified Immunity and Religious Liberty

Some illegal burdens on religious liberty are compensable only by money damages. And Congress enacted the Religious Freedom Restoration Act in part to address these cases. In Tanzin v. Tanvir, the Supreme Court recently held that RFRA permits damages suits against government officers in their individual capacities. But the Court assumed without deciding that officials are still qualifiedly immune from suit. So, plaintiffs’ ability to recover under RFRA now turns on the ability to identify existing law that “clearly establishes” their religious liberty rights. The Tanvir Court failed to comment on the substance of the qualified immunity defense in religious liberty cases. But courts have usually treated qualified immunity as a free-standing, homogenous doctrine not moored to any underlying claim, despite qualified immunity’s putatively statutory origins in the Civil Rights Act of 1871. And a growing body of recent scholarship is sharply critical of the state of qualified immunity doctrine. In particular, the Court’s requirement that plaintiffs point to “clearly established law” before they can overcome qualified immunity has been attacked as unjustifiable and disconnected from the animating justifications of qualified immunity. This paper makes two contributions to the literature. First, it approaches qualified immunity from a different angle than prior scholarship, which has tended to focus, understandably, on police use of force. But religious liberty cases raise unique concerns. This paper argues that applying the “clearly established law” test in religious liberty cases is both in deep tension with the Establishment Clause principle of denominational neutrality and unfaithful to the Religious Freedom Restoration Act. Second, this paper examines the consequences of the Court’s decision in Tanvir and demonstrates that the decision is unlikely to have any material impact without reforms to qualified immunity.

'Lipstick on a Pig': Specific Performance Clauses in Action

The black letter law says that money damages are the preferred remedy for contract breach under US law. Specific performance is reserved for extraordinary circumstances. Contract theory tells us that default rules generally reflect what a majority of contracting parties would agree to, had they considered the matter. But do contracting parties agree with the law’s preference for money damages over specific performance? In a data set of more than 1000 M&A contracts, we find that in over 80% of transactions, parties choose specific performance as their preferred remedy. Using interviews with senior M&A lawyers we seek to unpack the reasons why parties are contracting around the law’s distaste for specific performance and default rule of money damages.

Rethinking Contract Remedies

This Article offers a theoretical framework for thinking about contract remedies. The argument starts from the distinction between rights and remedies in contract law. The distinction is consistent with the doctrinal structure of contract law in Western legal systems, and with the available empirical evidence regarding contractual parties’ expectations. Because they tend to downplay this distinction, recent theoretical analyses of the American law of contract remedies, such as Shiffrin’s analysis of the divergence between contract and promise, and Markovits and Schwartz’s defense of expectation damages, go astray. An adequate theory of contract remedies must start by taking the distinctiveness of remedies seriously. The theory offered here argues that the function of contract remedies consists of two central roles: they protect the integrity of the practice of contracting and the individuals who engage in it. Because of these considerations, there is a pro tanto reason for a certain resemblance or proportionality between remedies and the primary contractual rights they enforce. But this reason is only one of the relevant considerations in the design and evaluation of contract remedies. Once we bear in mind the distinction between rights and remedies, remedial analysis can also incorporate other morally relevant considerations beyond the central function of remedies. In order to show this, this Article offers a defense of money damages which incorporates those additional considerations. The Article, thus, offers an integrated framework for remedial analysis, and therefore for illuminating some of the debates that have perplexed contract theorists writing about contract remedies.

Commercial Hostages: Local vs. Foreigner Business Disputes in China

A “commercial hostage” or “debt hostage” situation involves a dispute between a foreign company and its local partner over such matters as payment, the closing of a local office or facility, the laying off of local employees, the transfer or ownership of intellectual property, etc. Rather than file a lawsuit seeking money damages or an injunction, the local partner takes extra-judicial steps to detain the foreigner against their will, so as to pressure the foreign company into resolving the dispute. The local police may even actively assist the local partner by way of inaction when the foreign company asks for help. While this activity occurs in a number of countries, this study focuses on China. One challenge in studying commercial hostage situations is gathering enough cases to be able to gauge the factors that drive them. Stated differently, how can scholars shift the study of this important topic from the anecdotal to a data-based approach? This study is an initial attempt to do just that – it mainly attempts to gauge the frequency of recent commercial hostage activity in the P.R.C. Secondarily, it sheds light on where that activity occurs, why, and the identity of its victims. To accomplish this, Freedom of Information Act requests were submitted to six Western countries (including the U.S.) with significant China trade. English and Chinese business and legal media reports were also searched for commercial hostage cases involving foreigners. Between these two sources, dozens of commercial hostage incidents were identified. The vast majority occurred in or near Tier 1 cities and/or coastal regions, a significant number involved foreign firms operating in the commodity goods space, and a disproportionate percentage involved ethnic Chinese. Building on these findings, we conclude by providing a risk assessment matrix that foreign businesspersons can use to evaluate the risk of traveling to the P.R.C. for business. As trade tensions rise between the U.S. and China, the importance of this issue and evaluating commercial hostage risk may only increase.

Medicolegal Sidebar: Peer Review of Professional Competence.

Medicolegal Sidebar: Peer Review of Professional Competence.

The Indian Securities Fraud Class Action: Is Class Arbitration the Answer?

In 2013, India enacted one of the most robust private enforcement regimes for securities fraud violations in the world. Unlike in most other countries, Indian shareholders can now initiate securities fraud lawsuits on their own, represent all other defrauded shareholders unless those shareholders affirmatively opt out, and collect money damages for the entire class. The only thing missing is a better financing mechanism: unlike the United States, Canada, and Australia, India does not permit contingency fees, so class action lawyers cannot front the costs of litigation in exchange for collecting a percentage of what they recover. On the other hand, the 2013 law enacted a public financing regime for securities fraud class actions and it is possible third-party financing will be permitted; these mechanisms may make up some of the loss in effectiveness caused by the lack of contingency fees. It is still too early to tell. Yet, commentators are very pessimistic that the Indian securities fraud class action will do much good because the Indian court system is glacially slow. For example, it takes over six years on average to resolve some civil appeals. The solution to this problem in the 2013 law was to channel the securities fraud class action to a special tribunal, the National Company Litigation Tribunal (“NCLT”). Yet, this type of solution has been tried before in India: special tribunals tend to quickly take on the negative characteristics of the general courts. This may be why very few securities fraud lawsuits have been filed since the 2013 law was enacted. We propose a different solution to the problem of the Indian court system: class arbitration. As we explain, although class arbitration is not perfect, it may better facilitate robust private enforcement than the Indian court system.

Maximizing Patent Value by Effective Prosecution

How does your client realize value from a patent? There are only three ways -- • Litigate: to collect money damages, or obtain an injunction to exclude a competitor • Fear of litigation: Frighten a competitor remains out of the market, preserving your client’s higher margins, or license the patent for royalties. These depend on convincing the competitor that it’s better to conduct his business on your client’s terms than to litigate. • Attract investment capital: which in turn means convincing an investor that competitors will have a credible fear of the patent All value of a patent flows from its strength in litigation. The best patent is one that, evaluated as if it were to be litigated, appears to be valid and infringed so that no litigation is necessary. As Sun Tsu noted in The Art of War: No nation has ever benefited from protracted warfare. Therefore, to gain a hundred victories in a hundred battles is not the highest excellence; to subjugate the enemy's army without doing battle is the highest of excellence. To create value for your client you must assume that every application will be litigated. The value of your ex parte prosecution before a non-lawyer examiner will be tested by the standards of an inter partes litigation or negotiation against a lawyer adversary The value of a patent is measured solely by these objectives. A good patent is a patent that scares a competitor out of doing something he wants to do. Your patent should be so compelling that a competitor has to run his business on YOUR terms. How do we do that?

Trade Secrecy Injunctions, Disclosure Risks, and eBay's Influence

Historically, intellectual property (IP) owners could rely on injunctive remedies to prevent continued infringement. The Supreme Court's eBay v. MercExchange decision changed this, however. After eBay, patent courts no longer apply presumptions that push the deliberative scales in favor of injunctions (or “property rule” protection). Instead, patent injunctions require a careful four‐factor analysis, where plaintiffs must demonstrate irreparable injury (i.e., that money damages cannot compensate). Without question, eBay has made it harder for patent plaintiffs to secure injunctions, and has led many district courts to consider innovation policy concerns (e.g., the strategic behavior of patent “troll” plaintiffs) in the injunction calculus. By and large, courts’ more deliberative approach to patent injunctions post‐eBay has been viewed as beneficial for the patent system.Over the past decade, eBay’s influence has migrated to other areas of IP. This article offers the first account of eBay’s impact on federal trade secrecy injunctions. Important differences between trade secret law and other areas of IP—for example, the hard‐to‐quantify risk that disclosure poses to trade secret owners—has lessened eBay’s influence on trade secrecy injunctions. This article argues that disclosure risks justify a bifurcated approach to trade secrecy injunctions. That is, in cases involving the dissemination of trade secrets, courts should presume irreparable injury in the injunction calculus. However, in cases involving the unauthorized use of a trade secret—that is, where a defendant builds upon a plaintiff's trade secret but does not disseminate it—courts should not presume irreparable harm and, instead, should apply the eBay framework. As part of this assessment, courts should consider policy concerns related to cumulative innovation and employee mobility.

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.

Towards Optimal Treaties for Transboundary Watercourse Management

It is typical for riparians sharing a transboundary watercourse to make interdependent decisions on the allocation of limitedly available water for competing uses, such as hydroelectric power generation or agriculture. Realising this, riparians may agree to enact a treaty for the joint determination and management of their water allocations. The risk of inadequate or excessive allocations stems from a poorly designed or implemented treaty, yet is hardly addressed systematically in the debate on treaty formation or execution. Our objective in this paper is to propose a modelling framework for optimising the establishment or operation of transboundary watercourse treaties. First, using a calibrated mixed complementarity problem, we characterise the optimal allocations based on the economic welfare for each of the riparians under an “infinite” or unconstrained amount of water. Then, using game theory, we explore the strategic implications of alternative allocations under a “finite” or constrained amount of water. If, under the set of constrained allocations, cooperation does not Pareto dominate defection, there is no incentive to write a treaty. As a potential solution to the impasse, we calculate the fair transfers required to transform the game in such a manner that cooperation is not only a dominant strategy Nash equilibrium, but also Pareto-superior. We draw lessons for the rational design or implementation of transboundary watercourse treaties, including the use of money damages or non-money inducements to enhance the prospects of compliance.

Statement on CDC’s Patents for PrEP

This statement presents preliminary legal analysis concerning certain patents owned by the U.S. government that concern prevention of infection by HIV and other retroviruses. This statement was prepared as part of my work with the Global Health Justice Partnership and the Media Freedom & Information Access Clinic. The patents analyzed in this statement are U.S. Patent Nos. 9,044,509, 9,579,333, and 9,937,191. Each patent is entitled “Inhibition of HIV Infection through Chemoprophylaxis.” Each patent describes and claims (that is, covers) methods of preventing retroviral infection (e.g., infection by HIV) in an uninfected patient by administering a combination of two drugs: (1) emtricitabine and (2) tenofovir or a chemical derivative of tenofovir. That is, each patent claims methods of pre-exposure prophylaxis (“PrEP”) against HIV or another retrovirus with a combination of emtricitabine and tenofovir or a chemical derivative of tenofovir. These patents appear to be relevant to the use of a prescription drug product, TRUVADA® (emtricitabine and tenofovir disoproxil fumarate) tablets. TRUVADA® tablets are approved by the Food and Drug Administration (“FDA”) for preventing HIV infection. I conducted a preliminary analysis of the current FDA-approved prescribing information for TRUVADA® tablets published by Gilead Sciences, Inc. (“Gilead”), comparing the prescribing information to one of the claims of the patents. Based on my preliminary analysis of U.S. Patent Nos. 9,044,509, 9,579,333, and 9,937,191, I have no reason to believe that the patents would be found invalid or unenforceable, if asserted in court. Based on my analysis of the TRUVADA® prescribing information in comparison to an exemplary claim of these patents, I have no reason to believe that use of TRUVADA® tablets according to its FDA-approved indication for preventing infection by HIV would not be found to infringe at least this exemplary patent claim. Infringement of a patent claim can create liability, including potential money damages owed to the patent owner, which in this case is the U.S. government.

Judge prohibits disabled employee from recovering money damages

Campus Legal AdvisorVolume 19, Issue 4 p. 11-12 Disability — Termination Judge prohibits disabled employee from recovering money damages First published: 23 November 2018 https://doi.org/10.1002/cala.30927Read the full textAboutPDF ToolsRequest permissionExport citationAdd to favoritesTrack citation ShareShare Give accessShare full text accessShare full-text accessPlease review our Terms and Conditions of Use and check box below to share full-text version of article.I have read and accept the Wiley Online Library Terms and Conditions of UseShareable LinkUse the link below to share a full-text version of this article with your friends and colleagues. Learn more.Copy URL Share a linkShare onFacebookTwitterLinked InRedditWechat Abstract Case name: Robinson v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, No. 17-6956 (E.D. La. 09/13/17). Volume19, Issue4December 2018Pages 11-12 RelatedInformation

Are School Personnel Liable for Money Damages Under the IDEA or Section 504 and the ADA?

ABSTRACTThis brief article addresses the question of whether the Individuals with Disabilities Act or Section 504 and its sister statute, the Americans with Disabilities Act, provides for the liability of special educators and other public school personnel for money damages. The analysis synthesizes the applicable case law under these federal disability laws not only directly but also in connection with the added avenue of liability under Section 1983, and discusses the practical implications of the almost entirely “No” answer to this focal question.

Danger at the Edge of Chaos: Predicting Violent Behavior in a Post-Daubert World

This interdisciplinary article explores the boundaries of predicting violence in the context of capital sentencing decisions. Currently, experts are permitted to proffer opinions in death sentencing proceedings that have little grounding in science, without any examination of the scientific validity of their assertions. They are permitted to do so because, despite being widely castigated as wholly unscientific by the scientific community, predictions of future dangerousness were found to be constitutionally admissible in Barefoot v. Estelle. Standards for evaluating expert testimony have changed considerably since Barefoot, however. The Supreme Court, through its Daubert line of cases, has caused a paradigm shift in the evaluation of scientific evidence in both state and federal courts. The kind of unscientific predictions proffered in Barefoot continue nonetheless to be routinely admitted in sentencing proceedings without any judicial gatekeeping efforts. The tension between the scientific scrutiny required for admissibility even in civil cases (where money damages are at stake) and the unscientific predictions freely admissible in capital sentencing determinations (where the issue is death) is, at best, troubling. This article explores the validity of dangerousness predictions in light of the latest scientific research about brain structure and function. It also discusses the development of actuarial instruments to assess risk, and compares three predominant actuarial instruments. Based on criteria scientists themselves use to assess validity, as well as the Supreme Court's requirements in Daubert, Joiner, and Kumho Tire, this article outlines a framework for sound analysis of scientific evidence regarding predictions of future violence. Drawing on insights from brain science as well as complexity theory and empirical studies of jury decisionmaking, this article concludes that although actuarial instruments should be used with caution, they offer improvements over the unaided judgment of juries and over the kind of unscientific assertions about future dangerousness currently typical in capital sentencing proceedings. This is an important and timely issue, because the consequences of misleading the jury in a death sentencing determination are severe, not only for the defendant, but for a society that values justice and aspires to rationality.

From meaning to money: Translating injury into dollars.

Legal systems often require the translation of qualitative assessments into quantitative judgments, yet the qualitative-to-quantitative conversion is a challenging, understudied process. We conducted an experimental test of predictions from a new theory of juror damage award decision making, examining how 154 lay people engaged in the translation process in recommending money damages for pain and suffering in a personal injury tort case. The experiment varied the presence, size, and meaningfulness of an anchor number to determine how these factors influenced monetary award judgments, perceived difficulty, and subjective meaningfulness of awards. As predicted, variability in awards was high, with awards participants considered to be "medium" (rather than "low" or "high") having the most dispersion. The gist of awards as low, medium, or high fully mediated the relationship between perceived pain/suffering and award amount. Moreover, controlling for participants' perceptions of plaintiffs and defendants, as well as their desire to punish and to take economic losses into account, meaningful anchors predicted unique variance in award judgments: A meaningful large anchor number drove awards up and a meaningful small anchor drove them down, whereas meaningless large and small anchors did not differ significantly. Numeracy did not predict award magnitudes or variability, but surprisingly, more numerate participants reported that it was more difficult to pick an exact figure to compensate the plaintiff for pain and suffering. The results support predictions of the theory about qualitative gist and meaningful anchors, and suggest that we can assist jurors to arrive at damage awards by providing meaningful numbers. (PsycINFO Database Record

Judge prohibits disabled employee from recovering money damages

Case name: Robinson v. Board of Supervisors of Louisiana State University and Agricultural and Mechanical College, No. 17‐6956 (E.D. La. 09/13/17).

Disaggregating Constitutional Torts

In the four decades since Monroe v. Pape, the Supreme Court has crafted a vast body of law on money damages for violations of constitutional rights. This essay argues that Monroe was wrong. The error lay not in the result, which was admirable, but in the attribution of that result to a Reconstruction-era statute applicable indifferently to all rights. Treating the availability of damages as a transsubstantive exercise in statutory interpretation obscures important differences among rights and suppresses clear thinking about remedies. A better strategy would abandon one-size-fits-all and adapt remedies to specific kinds of constitutional violations. The availability of money damages would then depend on an assessment of their role in enforcing particular rights - and especially on the availability of alternative remedies that make damages more or less needful.