December 16, 2011
ATRA Releases New "Judicial Hellholes" List
The American Tort Reform Association has released its annual "judicial hellholes" list. Topping the list this year is Philadelphia, with California, West Virginia, South Florida, and Madison/St. Clair Counties, Illinois, rounding out the top five.
The American Association for Justice (the former Association of Trial Lawyer's of America) has issued a response and critique.
December 15, 2011
It is a familiar ideal that the remedy should fit the wrong – this wrong, by this wrongdoer, against this victim. Modern legal systems ordinarily pursue this kind of fit, at least in civil cases, by tailoring the remedy case by case. There is an alternative, though, which is for a legal system to announce in advance exactly what the remedy will be for all violations of a legal rule. This Article analyzes this alternative, and it offers a theory for when remedies should be announced.
Announcing has important social benefits. First, there is greater equality, because what a successful litigant recovers is not affected by her race, gender, or other characteristics. Second, announcing produces greater compliance with legal rules, because it assures the public that remedies are not being unfairly manipulated. Third, announcing reduces the “costs of telling.” When remedies are decided case by case, a plaintiff’s recovery depends on how successfully she tells her story. This telling has personal costs, such as impaired hedonic adaptation, that are avoided when remedies are announced.
In achieving these benefits, announcing does not operate as a unitary phenomenon. Sometimes it performs a cost-saving function, sometimes a communication function, and sometimes a precommitment function. Distinguishing between these functions is critical to proper use of announcing. Other important considerations include the interplay of rights and remedies, the need for future-proofing, and the way announcing one remedy can affect the entire system of remedies.
December 14, 2011
Rhee on Economic Analysis of Punies
Robert Rhee (Maryland) has posted to SSRN A Financial Economic Analysis of Punitive Damages. The abstract provides:
This Article provides a financial economic analysis of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather, it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economic theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement dynamics, this Article shows that punitive damages beget problematic risk arbitrage opportunities, which systemically produce under- and over-valuation of cases. These effects yield inefficient pricing in the litigation system. Properly conceptualized and applied, punitive damages can mitigate risk arbitrage that skews actual results from the prescriptions of optimal liability and deterrence. The modern Supreme Court jurisprudence is flawed because it is overbroad. Single-digit multiplier caps underdeter defendants in most cases of ordinary liability because punitive damages do not sufficiently offset a defendant’s risk arbitrage opportunity gained from a lower litigation risk exposure. When, however, liability is catastrophic, punitive damages overdeter defendants, even when it is limited to single-digit multipliers, because they impart severe economic cost of financial distress in addition to the monetary cost of the judgment. These additional economic costs must be credited toward the calculus of cost internalization and optimal deterrence. Thus, a calibrated risk-based theory is needed to support legal limitations on punitive damages.
December 13, 2011
Rights and the Private Law
A new publication, Rights and Private Law , may be of interest to readers. The book contains a collection of essays examining rights-based analysis in private law schoalrship. You can sample the introduction (pdf) by Donal Nolan and Andrew Robertson. The table of contents is also available.
Thanks to Jason Neyers for the info.
December 12, 2011
Plaintiffs Win $72M in Hormone Replacement Therapy Case
The Pennsylvania Record reports a Philadelphia jury awarded three women a collective $72.6 million against Pfizer; the plaintiffs alleged that their breast cancer was caused by hormone therapy medications manufactured by Wyeth since acquired by Pfizer.