Punitive Damages Research Articles

Los daños punitivos como mecanismo sancionatorio del maltrato animal

En Colombia, gracias a la modificación del código penal con la ley 1774 de 2016 se consideran a los animales como seres sintientes, mas no como cosas; siendo así recibirán protección especial de sufrimiento y dolor por todo aquel que les cause un daño a los seres sintientes (Taborda, 2016), el cual deberá resarcirlo no de manera estricta, sino que en razón de la moral debe ser castigado atribuyéndole al afectado una indemnización referente al daño punitivo. Aunque los daños punitivos no son aplicables en Colombia, ¿cómo se podría aplicar una protección a seres sintientes en Colombia en relación a los daños punitivos como mecanismo sancionatorio?, a continuación se realizará un análisis deductivo de la legalidad de una posible sanción económica incluida dentro de los daños a la salud del animal frente a una conducta imprudente, maliciosa o engañosa del que ocasionó el daño. Se tendrá en cuenta los aspectos socio jurídicos del maltrato animal en Colombia, el contexto jurídico del maltrato animal en cuanto a la responsabilidad civil, la figura de los daños punitivos como un mecanismo de reprenda a los daños ocasionados a los seres sintientes y todo lo que conlleva el implementar esta figura en sí dentro de un país exclusivamente reparador

가맹사업거래의 공정화에 관한 법률상 징벌적 손해배상에 대한 연구

가맹사업거래의 공정화에 관한 법률상 징벌적 손해배상에 대한 연구

The French ‘Duty of Vigilance’ Law: Lessons for an EU Directive on Due Diligence in Multinational Supply Chains

The Rana Plaza tragedy demonstrated the need to regulate companies which use subsidiaries, subcontractors and suppliers to carry out underpaid work, without consideration for core humanitarian principles, including trade union and workers’ rights. Structures permitting companies to profit from such abusive practices should be replaced by a principle of company responsibility for their entire value chain. A French law passed in 2017, which defines a ‘duty of vigilance’ for companies, provides important lessons for the drafting of an EU directive on due diligence. The duty of vigilance applies to human rights and fundamental freedoms, health and safety, and the environment. Going beyond a simple ‘due diligence’ obligation, it mandates companies to set up a ‘vigilance plan’ containing reasonable but adequate measures to identify risks and to prevent severe impacts on such rights. A directive at the EU level on this issue should be adopted based on these principles. It should also contain appropriate internal monitoring arrangements (such as a ‘vigilance committee’ with stakeholder representation, including trade unions and worker representatives), proper external supervision (through a public supervisory agency) and adequate remedies, including criminal sanctions, disgorgement of profits, and punitive damages. The directive should apply to companies whose seat is in the EU as well as companies above a certain size threshold selling goods and services in the EU.

Stigma and Whistleblowing: Should Punitive Damages be Available in Retaliation Cases?

Abstract This article uses a range of disciplinary perspectives to examine what is meant by stigma and explains that it is a relational concept. It argues that there has been a shift from attributing social stigma to whistleblowing, to regarding whistleblowing as a form of prosocial behaviour, that is, something which contributes to the well-being of others. This shift is evidenced by the attempts to establish supportive organisational cultures through the introduction of specialist employer policies and procedures, the existence of protective legislation and the coverage of whistleblowing in the media. Although it is questioned why stigma should still attach to whistleblowing, it is acknowledged that those who suffer reprisals may well seek stigma damages. Thus the article traces the common law and statutory origins of stigma awards and discusses the appropriateness of exemplary/punitive damages in the employment field. In the conclusion, it is advocated that Parliament expressly provide for exemplary/punitive damages to be awarded in employment cases. In addition, practical suggestions are made about how a more positive attitude to whistleblowing can be achieved, including a possible role for criminal sanctions. The author asserts that a more punitive approach is justified because whistleblowing is an important aspect of the human right to freedom of expression which must be fully protected in order to ensure the proper functioning of a democratic society.

The Suing Parties of Pure Civil Public Interest Litigation in China Should Not Claim Punitive Damages

With the transformation of Chinese society and the development of its economy, many infringements against public interests have occurred. The legal resolution of those disputes is vital to the country’s further growth. In order to fully protect the public welfare, the National legislature of China revised the Civil Procedure Law, and created the system of civil public interest litigation (CPIL). In line with valid laws, the suing parties of CPIL are only entitled to file claims of inaction and claims for actual losses. However, for the purpose of enhancing the effect of punishment, deterrence and thereby better protecting the public interest, as one of the proper suing parties in CPIL, People’s Procuratorates of China have been keen on filing a new type of request to the court---the claim of punitive damages. As for the filed claim of punitive damages, the attitude of judges is polar opposite on it. Some upheld that claim, while others rejected it. The academic circle is roughly divided into two similar mutual opposing groups. So, should the suing parties be authorized to file such claims to the court? The conclusion of this article is: No, they shouldn’t. There are three reasons to support that argument: 1. Legal bases for filing CPIL punitive damages are administrative regulations and judicial explanatory documents. Firstly, for their vague meaning, they possess a low status in China’s law hierarchy, and are incompetent for the assigned job. Secondly, because the function of administrative regulations or judicial explanatory documents is to “patch loopholes in basic systems of civil law”, they actually committed ultra vires in legislative affairs. 2. This topic is constantly plagued by a paradox: if we stick to the developing trend of merely filing claims of inaction and claims for actual losses, it will negatively affect the deterrent and punishing effects of CPIL; on the other hand, if punitive damages are introduced into CPIL, it will certainly cause the confusion of CPIL and the traditional civil litigation for the protection of harmed private interests. 3. The theoretical studies of punitive damages for harmed public welfare is far from perfect. This awkward status quo is reflected in a train of conundrums yet to be deciphered. As far as this article is concerned, the author mainly used the following research methods such as case analyses, theoretical analyses, and comparative law studies.

Precise Punishment: Why Precise Punitive Damage Requests Result in Higher Awards Than Round Requests

Imagine a setting where someone asks two people what the temperature is outside. The first person says it is 80 °F, while the second person says it is 78.7 °F. Research regarding precise versus round cognitive anchoring suggests that the second person is more likely to be believed. This is because it is human nature to assume that if someone gives a precise answer, he must have good reason for doing so. This principle remains constant in a variety of settings, including used car negotiations, eBay transactions, and estimating the field goal percentage of a basketball player. This Article reports the results of a first-of-its-kind study involving over 600 participants designed to measure if this same principle applies to punitive damage requests from plaintiffs’ attorneys. In other words, can a plaintiff’s attorney increase the punitive damages awarded simply by requesting $497,000 instead of $500,000. The stark differences produced from such a subtle and costless change provide a valuable strategy for plaintiffs’ attorneys, a cautionary warning for civil defense attorneys, and constructive insight into the subjective nature of juror decision-making.

The Real Cost of Fake News: Smartmatic’s $2.7 Billion Defamation Lawsuit Against Fox News

On February 4, 2021, voting machine company Smartmatic filed a defamation lawsuit against Rudolph Giuliani, Sidney Powell, Fox News, and Fox News personalities Lou Dobbs, Maria Bartiromo, and Jeanine Pirro. The complaint seeks $2.7 billion in compensatory damages, punitive damages, and attorney’s fees. The 285-page complaint alleges the damages were incurred from the defendants’ false claims that Smartmatic was actively involved in rigging the 2020 U.S. presidential election in favor of Joe Biden. This is similar to the defamation lawsuit filed by Dominion Voting Systems, Inc., (Dominion) against Sidney Powell on January 8, 2021. Part II of this Article addresses the complaint generally. Part III considers the allegation that the defendants actively colluded together. Part IV analyzes the case against Giuliani and Powell, including false statements, intent, their failed election fraud lawsuits, actual malice, and potential immunity as attorneys for Donald Trump. Part V considers the case against Fox News, including issues of potential motivations, what was known when, ambiguities in coverage, and the accessibility of accurate information. Part VI considers Smartmatic’s various damages claims, including the ability to sue on behalf of employees and receive compensation for future, reputational harm. Part VII compares the present lawsuit to the earlier Dominion lawsuit against Sidney Powell. Part VIII uses the plaintiffs’ attorney’s former “pink slime” defamation lawsuit as a comparison. Part IX concludes by predicting the trial outcome and ramifications this case may have on the political process and defamation precedent. The outcome of the Smartmatic lawsuit could have significant consequences not just for the defendants but also for the political landscape. For example, the discovery process has the potential to uncover damaging communications implicating high-profile players. There is even evidence to suggest that future litigation could include former President Trump. The Smartmatic lawsuit could also have a long-term effect on defamation case law if it reaches the Supreme Court. The Court could use it as an opportunity to revisit Sullivan, as recently advocated for by Justice Thomas.

Punitive Damages Caused by Food Label Defects —The Case of Disputes Between Yanta Mall and Changs’ Sales Contract in Xi’an

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AI Soft Law and the Mitigation of Product Liability Risk

Artificial intelligence systems present various types of risks, but are generally not subject to comprehensive government regulation at this time. Soft law measures such as private standards have been developed to fill this governance gap, but a major limitation of such standards is that they are not directly enforceable, and so many companies may not comply with them. This article examines the thesis that compliance with soft law standards may provide some protection from product liability, thus providing additional incentive for companies to adopt and comply with such standards. Using U.S. case law as the focus of analysis, compliance with private standards does not provide an absolute shield against liability, but can provide persuasive evidence of due care that can diminish liability risks in most U.S. state jurisdictions. Conversely, while failure to abide by soft law standards does not automatically result in liability, it can provide probative evidence that a company has not exercised due care, and thus should be held liable. Moreover, compliance with soft law standards can provide an effective defense against punitive damages in many States if a company’s AI system does harm people or property and is held liable for compensating such damages. These findings suggest that protecting against such liability provides a powerful incentive for companies to comply with soft law standards.

民事公益诉讼惩罚性赔偿适用研究

民事公益诉讼惩罚性赔偿适用研究

The Effect of Consumer’s Safety Awareness and Complaints of Prior Product Safety Management on the Demand for Reinforcement of Post Product Safety Management

본 연구는 제품인증마크에 대한 인식, 안전정보 불만, 제품안전 불신이 사전 제품안전관리불만, 사후안전관리강화에 미치는 영향력을 공변량구조분석을 사용하여 검증하였다. 본 연구의 주요 분석결과는 다음처럼 요약할 수있다. 첫째, 제품안전정보에 대한 소비자불만, 제품안전에 대한 소비자불신이 사전 제품안전관리불만에 정적 영향을미치는 것으로 나타났다. 이 결과는 제품안전정보에 불만이 많고, 제품안전에 대한 소비자불신이 높은 소비자일수록 제품사전안전관리에 대한 불만 수준이 높음을 알 수 있다. 둘째, 매개변수인 사전 제품안전관리 불만은 소비자의 사후안전관리강화 요구에 정적 영향을 미치는 것으로 나타났다. 사전안전관리에 대한 불만이 높은 소비자일수록 사후안전관리강화 요구가 높다고 할 수 있다. 본 연구결과를 토대로 몇 가지 제안하였는데, 첫째, 소비자들의 전에 대한 인식, 소비자들의 안전관리정책에대한 수요를 반영하는 안전관리정책으로 전환되어야 한다. 둘째, 사후 제품안전관리 강화를 적극 도입할 필요가있다. 셋째, 사후안전관리의 수단인 집단소송법, 징벌적 손해배상제도 등의 도입을 적극 검토하고 불법행위에 대한 사업자의 손해배상책임을 엄격히 부과시켜 사업자의 불법행위 및 제품안전사고를 예방해야 한다. 넷째, 제품안전사고에 대한 집단피해구제 인정, 제품결함 등의 입증책임 등에서 소비자 관점이 반영되어야 한다. 다섯째, 소비제품의 사전 안전관리를 철저히 하기 위해 전문적 관리체계 구축, 위해성에 대한 과학적 분석 및 위해정보체계 구축이 시급하다. 끝으로 소비자의 안전의식 고취로 제품으로 인한 대형 안전사고 예방이 중요하다.This study verified the effects of recognition of product certification marks, complaints about safety information, and distrust of product safety on pre-product safety management complaints and reinforcement of post safety management using covariate structure analysis. The main analysis results of this study are as follows. First, it was found that consumer complaints about product safety information and consumer distrust about product safety had a positive effect on prior product safety management complaints. This result shows that the more dissatisfied with product safety information and the higher consumer distrust of product safety, the higher the level of dissatisfaction with product safety management. Second, it was found that the pre-product safety management complaint, a parameter, had a positive effect on the consumer s demand for reinforcement of post safety management. It can be said that the more dissatisfied with the pre-safety management, the higher the demand for reinforcement of post-safety management. Based on the results of this study, several proposals were made. First, it should be converted into a safety management policy that reflects the consumer s perception of the war and the consumer s demand for safety management policy. Second, it is necessary to actively introduce reinforcement of post product safety management. Third, it is necessary to actively review the introduction of the collective action law and punitive damage compensation system, which are means of post-safety management, and strictly impose liability for damages of the business operator for illegal activities to prevent illegal acts and product safety accidents. Fourth, consumer s perspective should be reflected in the recognition of collective damage relief for product safety accidents and the responsibility to prove product defects. Fifth, it is urgent to establish a professional management system, a scientific analysis of risk, and a risk information system to thoroughly manage the safety in advance of consumer products. Finally, it is important to prevent large-scale safety accidents caused by products by raising consumer safety awareness.

Reduced damages in dicamba case

A federal judge in Missouri has reduced by $190 million the punitive damages BASF and Bayer must pay a peach farmer. Bill Bader sued BASF and Monsanto in 2016, saying the firms encouraged neighbori...

BASF, Bayer win $190 million reduction in punitive damages in dicamba case

BASF, Bayer win $190 million reduction in punitive damages in dicamba case

Los daños punitivos en el derecho mexicano. Algunas ideas para su interpretación

Recientemente, la Primera Sala de la Suprema Corte de Justicia de la Nación dictó una resolución en la que declaró la admisibilidad de los daños punitivos en el derecho me-xicano, en materia de daño moral. Sin embargo, al aplicarlo un análisis detallado de la sentencia, sus argumentos y fundamentos, nos lleva a la conclusión de que esa figura tiene muy poco en común con los “punitive damages” aplicados en los sistemas jurídicos del common law, y se re-fiere únicamente a la forma de cuantificar la indemnización que se otorgue a la víctima.

Unintended Consequences of Products Liability: Evidence from the Pharmaceutical Market*

Abstract We explain a surprising effect of tort liability in the market for prescription drugs. Greater punitive damage risk seems to increase prescription drug utilization in states without non-economic damage caps but decrease utilization in states with such caps. We offer an explanation for this puzzle. The vertical production process for drugs involves national upstream producers (drug companies) and local downstream producers (doctors). When a single state reallocates liability from downstream to upstream producers, national drug companies see little reason to alter their nationwide output decisions, but local physicians have incentives to increase their prescriptions in that state. The net result is higher local output. We show how this dynamic can explain our puzzle by demonstrating that punitive damages shift liability upstream from doctors to drug companies, but not when non-economic damages caps limit physician malpractice liability. We provide evidence explaining when, how, and why this type of liability shifting occurs (JEL K13, I11, I18).

Precise Punishment: Why Precise Punitive Damage Requests Result in Higher Awards than Round Requests

Imagine a setting in which someone asks two people what the temperature is outside. The first person says it is 80°, while the second person says it is 78.7°. Research regarding precise versus round cognitive anchoring suggests that the second person is more likely to be believed. This is because it is human nature to assume that if someone gives a precise answer, he must have good reason for doing so. This principle remains constant in a variety of settings, including used car negotiations, eBay transactions, and estimating the field goal percentage of a basketball player. This Article reports the findings of a first-of-its-kind study designed to measure if this same principle applies to punitive damage requests from plaintiffs’ attorneys. In other words, can a plaintiff’s attorney increase the punitive damages awarded simply by requesting $497,000 instead of $500,000. The stark differences produced from such a subtle and costless change provides a valuable strategy for plaintiffs’ attorneys, a cautionary warning for civil defense attorneys, and constructive insight into the subjective nature of juror decision-making.

Incremental Learned Hand Standard, Degrees of Negligence and Allocation of Damages: a Comparative Tort Law and Economics Approach

The incremental Learned Hand standard is recognized as the main contribution of the law and economics literature to legal practice, as an objective criterion of negligence assessment. Traditionally, negligence gradation has been a factor considered by legal technology to allocate the damages. However, one of the main problems in legal practice lies in the establishment of objective criteria for quantitative assessment of the reduction or increase in the indemnity-damage ratio, considering the degree of negligence of the injurer and of the victim. Withal, is it possible to use the incremental Learned Hand standard as criterion of negligence graduation in order to allocate the damages? Using the theoretical foundations of law and economics literature in conjunction with the traditional legal classification of negligence into severe, ordinary and slight, and considering the Brazilian tort system as analytical basis, the paper shows that the answer is positive. The basic idea is that the incremental Learned Hand standard is an algorithm which can be employed in legal practice to systematize the allocation of damages, performing, according to the degree of negligence of the injurer and of the victim, the full compensation or the decouple of the indemnity from the damages, streamlining the application of legal institutes such as comparative negligence, punitive damages, and equitable reduction of compensation (fairness).

The Structure of Rational Basis and Reasonableness Review

The Structure of Rational Basis and Reasonableness Review

U.S. Supreme Court Rules that Victims of State-Sponsored Terrorism Can Sue Foreign States for Retroactive Punitive Damages Under the Foreign Sovereign Immunities Act

In Opati v. Republic of Sudan, the Supreme Court upheld a $4.3 billion award of punitive damages against Sudan for its support of the 1998 bombings of U.S. embassies in Kenya and Tanzania. The Supreme Court held that Congress's 2008 amendments to the Foreign Sovereign Immunities Act (FSIA) authorized the plaintiffs to recover punitive damages from state sponsors of terrorism for acts committed prior to the enactment of these amendments. This case is part of a broader trend of U.S. litigation brought against states who are designated sponsors of terrorism or alternatively are deemed responsible for acts of terrorism within the United States.

징벌적 손해배상을 명한 외국판결의 승인과 집행에 관한 소고 - 우리나라에서 징벌적 손해배상 제도를 도입한 이후의 논의를 중심으로 -

징벌적 손해배상을 명한 외국판결의 승인과 집행에 관한 소고 - 우리나라에서 징벌적 손해배상 제도를 도입한 이후의 논의를 중심으로 -