Showing papers on "Damages published in 2006"

Hurricane Katrina and the Paradoxes of Government Disaster Policy: Bringing About Wise Governmental Decisions for Hazardous Areas

Abstract: The unprecedented losses from Hurricane Katrina can be explained by two paradoxes. The safe development paradox is that in trying to make hazardous areas safer, the federal government in fact substantially increased the potential for catastrophic property damages and economic loss. The local government paradox is that while their citizens bear the brunt of human suffering and financial loss in disasters, local officials pay insufficient attention to policies to limit vulnerability. The author demonstrates in this article that in spite of the two paradoxes, disaster losses can be blunted if local governments prepare comprehensive plans that pay attention to hazard mitigation. The federal government can take steps to increase local government commitment to planning and hazard mitigation by making relatively small adjustments to the Disaster Mitigation Act of 2000 and the Flood Insurance Act. To be more certain of reducing disaster losses, however, the author suggests that we need a major reorientation of th...

Does Happiness Adapt? A Longitudinal Study of Disability with Implications for Economists and Judges

Abstract: Economics ignores the possibility of hedonic adaptation (the idea that people bounce back from utility shocks). This paper argues that economists are wrong to do so. It provides longitudinal evidence that individuals who become disabled go on to exhibit recovery in mental wellbeing. Adaptation to severe disability, however, is shown to be incomplete. The paper suggests ways to calculate the level of compensatory damages for the pain and suffering from disablement. Courts all over the world currently use ad hoc methods.

The "Stern Review" on the Economics of Climate Change

Abstract: How much and how fast should the globe reduce greenhouse-gas emissions? How should nations balance the costs of the reductions against the damages and dangers of climate change? This question has been addressed by the recent "Stern Review on the Economics of Climate Change," which answers these questions clearly and unambiguously We need urgent, sharp, and immediate reductions in greenhouse-gas emissions An analysis of the "Stern Review" finds that these recommendations depend decisively on the assumption of a near-zero social discount rate The Review's unambiguous conclusions about the need for extreme immediate action will not survive the substitution of discounting assumptions that are consistent with today's market place

First Do No Harm?: Tort Reform and Birth Outcomes

Abstract: We examine the impact of tort reforms using U.S. birth records for 1989-2001. We make four contributions: First, we develop a model that analyzes the incentives created by specific tort reforms. Second, we assemble new data on tort reform. Third, we examine a range of outcomes. Finally, we allow for differential effects by demographic/risk group. We find that reforms of the "deep pockets rule" reduce complications of labor and C-sections, while caps on noneconomic damages increase them. Our results demonstrate there are important interactions between incentives created by tort law and other incentives facing physicians.

Investment Treaty Arbitration as a Species of Global Administrative Law

Abstract: The article outlines a simple thesis: that international investment arbitration – pursuant to regional and bilateral investment treaties – offers the clearest example of global administrative law, strictly construed, yet to have emerged. We present this thesis by explicating four key features of investment treaties: they permit investor claims against the state without exhausting local remedies; they allow claims for damages; they allow investors to directly seek enforcement of awards before domestic courts; and they facilitate forum-shopping. Our argument is that, owing to this unique conjunction of features, the regulatory conduct of states is, to an unusual extent, subject to control through compulsory international adjudication. Having highlighted these features, we then claim that investment arbitration is best analogized to domestic administrative law rather than to international commercial arbitration, especially since investment arbitration engages disputes arising from the exercise of public authority by the state as opposed to private acts of the state. Further, we claim that the linkages between investment arbitration and domestic legal systems are more direct and more closely integrated than other forms of international adjudication in the public sphere. For these reasons, we argue that the emerging regime of investment arbitration is to be understood as constituting an important and powerful manifestation of global administrative law.

Outside director liability

Abstract: Outside directors can fail to do a good job, sometimes spectacularly. Yet outside directors of U.S. public companies who fail to meet what we call their "vigilance duties" under corporate, securities, bankruptcy, environmental, and other laws almost never face personal liability. This paper describes the almost impenetrable windows within which outside directors may be personally liable for good faith conduct. The principal liability window is under securities law, for a seriously rich (hence worth chasing) director of an insolvent company, where damages exceed the DO barely open under securities law, but only if the firm is bankrupt -maps poorly (we argue) onto the policy factors that should inform director liability. We therefore consider whether the right policy move is toward greater liability of outside directors under corporate law, less liability under securities law, or some of both. We conclude that neither move will make a large difference in practice, given the mediating effects of insurance, indemnification, and settlement incentives. In a companion paper, Bernard Black & Brian Cheffins, Outside Director Liability and Reputational Sanctions Across Countries, we argue that a barely open liability window is likely to be a stable solution, both politically and in the D&O insurance market, and that a barely open window may strike a sensible balance between wanting directors to be aware of potential liability while wanting good candidates to neither avoid becoming directors nor to be overly risk-averse. The details of the window's shape may have only a second-order effect on director behavior.

Liability Externalities and Mandatory Choices: Should Doctors Pay Less?

Abstract: According to legal principles, a driver who negligently breaks a pedestrian's leg should pay the same damages as a doctor who negligently breaks a patient's leg. According to economic principles, however, the driver should pay more than the doctor. Non-negligent drivers impose risk on others without being liable for it. When liability externalities are mainly negative as with driving, liability should increase beyond full compensation to discourage the activity. Unlike pedestrians, patients contract with doctors for treatment and willingly submit to the risk of harm. Imperfections in medical markets cause some kinds of doctors to convey more positive than negative externalities on their patients. Increasing liability for these doctors would discourage an activity that needs encouragement. The argument for decreasing doctors' liability is especially strong when doctors must choose among risky procedures, such as cesarean or vaginal delivery of a baby, which we call a "mandatory choice". Given equal benefits, the doctor ought to choose the least risky alternative. If the doctor negligently chooses a more risky alternative and harm materializes, courts award damages equal to the harm suffered by the patient. Even without the doctor's faulty choice, however, the patient would have been exposed to the least risky alternative. Economic efficiency requires reducing the doctor's liability below the victim's actual harm, which current legal rules usually prohibit. We propose that legislatures give courts the choice of lowering tort damages for doctors in well defined circumstances, and for their mandatory choices in particular, and we suggest some principles for doing so.

The Role of Markets and Governments in Helping Society Adapt to a Changing Climate

Abstract: This paper provides an economic perspective of adaptation to climate change. The paper specifically examines the role of markets and government in efficient adaptation responses. For adaptations to be efficient, the benefits from following adaptations must exceed the costs. For private market goods, market actors will follow this principle in their own interest. For public goods, governments must take on this responsibility. Governments must also be careful to design institutions that encourage efficiency or they could inadvertently increase the damages from climate change. Finally, although in a few cases actors must anticipate climate changes far into the future, generally it is best to learn and then act with respect to adaptation.

The Enforcement of Jurisdiction Agreements Within The Brussels Regime

Abstract: Until relatively recently the question of whether it is possible to get damages for breach of an exclusive jurisdiction clause was very rarely considered by the courts and had attracted little academic interest. But when considered alongside recent developments in cases covered by the Brussels regime, the subject becomes of potentially much greater practical significance. The main purpose of this article is to consider how the newly developing common law principles might apply in that context.

Outside Director Liability Across Countries

Abstract: Settlements reached in 2005 in securities litigation involving Enron and WorldCom highlighted the financial risks faced by outside directors of public companies. We argue elsewhere that Enron and WorldCom, as instances where directors made damages payments out of their own pockets, are and likely will remain exceptional in the United States (see Bernard Black, Brian Cheffins and Michael Klausner, Outside Director Liability, http://ssrn.com/abstract=894921). In this paper, we show that the risk of out-of-pocket payment is likewise very low on a cross-border basis, in both common law and civil law countries. The largest source of risk is efforts by government agencies to make an example of particular directors, even when the cost of doing so likely exceeds the financial recovery. We study Britain and Germany in depth and offer summaries of the position in Australia, Canada, France, and Japan. We find that while specific laws quite often differ, there is substantial functional convergence. In each country we analyze, due to a combination of substantive law, procedural rules, and market forces, the out-of-pocket liability risk faced by outside directors of public companies is similar - present but very small. We draw upon our cross-border analysis to assess the legal risks outside directors can expect to face going forward, both in the United States and elsewhere. We also briefly consider whether the current approach reflects sensible public policy. Other pieces of this overall project are: http://ssrn.com/abstract=382422 (a pre-Enron and WorldCom version of "Outside Director Liability", 2004) http://ssrn.com/abstract=878135 (policy analysis, 2005) http://ssrn.com/abstract=628223 (study of Korea, 2011) http://ssrn.com/abstract=682507 (summary article for a finance audience, 2005) http://ssrn.com/abstract=800584 (Germany-centered, 2005) http://ssrn.com/abstract=800604 (German language version of Germany-paper, 2005) http://ssrn.com/abstract=590913 (summary article for a practitioner audience, 2004)

Liability Externalities and Mandatory Choices: Should Doctors Pay Less?

Abstract: According to legal principles, a driver who negligently breaks a pedestrian’s leg should pay the same damages as a doctor who negligently breaks a patient’s leg. According to economic principles, however, the driver should pay more than the doctor. Non-negligent drivers impose risk on others without being liable for it. When liability externalities are mainly negative as with driving, liability should increase beyond full compensation to discourage the activity. Unlike pedestrians, patients contract with doctors for treatment and willingly submit to the risk of harm. Imperfections in medical markets cause some kinds of doctors to convey more positive than negative externalities on their patients. Increasing liability for these doctors would discourage an activity that needs encouragement. The argument for decreasing doctors’ liability is especially strong when doctors must choose among risky procedures, such as cesarean or vaginal delivery of a baby, which we call a “mandatory choice”. Given equal benefits, the doctor ought to choose the least risky alternative. If the doctor negligently chooses a more risky alternative and harm materializes, courts award damages equal to the harm suffered by the patient. Even without the doctor’s faulty choice, however, the patient would have been exposed to the least risky alternative. Economic efficiency requires reducing the doctor’s liability below the victim’s actual harm, which current legal rules usually prohibit. We propose that legislatures give courts the choice of lowering tort damages for doctors in well defined circumstances, and for their mandatory choices in particular, and we suggest some principles for doing so. ∗Robert Cooter is Herman Selvin Professor of Law, University of California at Berkeley. Ariel Porat is Alain Poher Professor of Law, Tel Aviv University Faculty of Law and Visiting Professor, University of Chicago Law School (Fall 2006). For helpful comments we wish to thank Jennifer Arlen, Ronen Avraham, Richard Craswell, Mark Geistfeld, Keith Hylton, Barak Medina, Ronen Perry, Mitch Polinsky, Steve Sugarman, Omri Yadlin, the participants in the law and economics workshops at Berkeley and Stanford, and the participants in the conference, “Tort Law and the Modern State”, Columbia University School of Law, 15-16 September 2006. We thank Arik Rosen and Jennifer Shakbatur for excellent research assistance.

Corruption, Exogenous Changes in Incentives and Deterrence

Abstract: In this article we apply and extend the model elaborated by Acemoglu and Verdier in their seminal paper (2000), to examine how the economy represented in their theoretical framework responds to an exogenous change in the agent's incentive. In particular, we focus on the consequences of a famous sentence of the Italian Supreme Court in plenary session, no. 500 of 1999, in which a revolutionary interpretation of civil liability rules is introduced, allowing private agents of our economy to appear before the court to demand reimbursement for the damages suffered as a consequence of illicit behavior of the public administration. This is one of the few cases in which the judex substantially makes law in a system of civil law, and the modification in incentive whether or not to be corrupted comes from an authority that is not part of the game (the jurisdictional power). Basing our affirmations on the model, we can say that corruption may have declined in Italy since the year 2000, as a result of a change in the incentives for both private agents and bureaucrats.

Effectiveness of Antitrust Sanctions on Modern International Cartels

Abstract: This paper assesses the antitrust fines and private penalties imposed on the participants of 260 international cartels discovered during 1990-2005, using four indicators of enforcement effectiveness. First, the United States is almost always the first to investigate and sanction international cartels, and its investigations are about seven times faster than EU probes. Second, U.S. investigations were more likely to be kept confidential than those in Europe, but the gap nearly disappeared since 2000. Third, median government antitrust fines average less than 10% of affected commerce, but rises to about 35% in the case of multi-continental conspiracies. Civil settlements in jurisdictions where they are permitted are typically 6 to 12% of sales. Canadian and U.S. fines and settlements imposed higher penalties than other jurisdictions. Fourth, fines on cartels that operated in Europe averaged a bit more than half of their estimated overcharges; those prosecuted only in North America paid civil and criminal sanctions of roughly single damages; and global cartels prosecuted in both jurisdictions typically paid less than single damages.

Outside director liability across countries

Abstract: Settlements reached in 2005 in securities litigation involving Enron and WorldCom highlighted the financial risks faced by outside directors of public companies We argue elsewhere that Enron and WorldCom, as instances where directors made damages payments out of their own pockets, are and likely will remain exceptional in the United States1 In this paper, we show that the risk of out-of-pocket payment is likewise very low on a cross-border basis, in both common law and civil law countries The largest source of risk is efforts by government agencies to make an example of particular directors, even when the cost of doing so likely exceeds the financial recovery We study Britain and Germany in depth and offer summaries of the position in Australia, Canada, France, and Japan We find that while specific laws quite often differ, there is substantial functional convergence In each country we analyze, due to a combination of substantive law, procedural rules, and market forces, the out-of-pocket liability risk faced by outside directors of public companies is similar-present but very small We draw upon our cross-border analysis to assess the legal risks outside directors can expect to face going forward, both in the United States and elsewhere We also briefly consider whether the current approach reflects sensible public policy I Introduction Around the world, vigilant outside directors are a key component of most prescriptions for good corporate governance But what makes outside directors work hard and pay attention? One potential source of incentives is legal liability This possibility is highly topical "The press went into overdrive"2 as it covered a trial in which the Delaware Chancery Court held in a 2005 ruling that the directors of Walt Disney Company had not breached their fiduciary duties to the company when hiring and dismissing a senior executive3 Similarly, in 2005, when highly publicized out-of-court settlements were announced under which former outside directors of WorldCom and Enron agreed to pay a total of nearly $40 million out of their own pockets to settle class action securities lawsuits, the media heralded these settlements as signaling an era of both greater director risk and increased boardroom vigilance4 Theoretically, legal liability can help to motivate those serving in the boardroom to be attentive since they will fear adverse financial consequences if they fail to perform up to legal standards In fact, across countries, laws governing outside directors of public companies often lack financial "bite" Outside the United States, most would assume that America is an exception to this pattern A standard refrain is that directors in the United States operate in a hostile legal climate and that directors of foreign companies whose shares trade on US stock markets face grave liability risks5 This received wisdom is erroneous Outside directors of US public companies indeed face a much higher risk of being sued than their counterparts in other countries These suits, however, pose little risk of an out-of-pocket payment, particularly if a company buys directors and officers' liability (D&O) insurance sufficient to cover legal expenses and a decent damages payment As we document in a paper analyzing outside director liability in the US, the payments in Enron and WorldCom were a major departure from the norm6 But what about elsewhere? What legal risks do outside directors of non-US public companies face? Do they have less to fear than their US counterparts? Or more? This Article addresses these questions and related issues In so doing, we also offer a unique perspective on outside director liability in the US by using non-US experience to identify circumstances under which American directors might in the future face a significant risk of making personal payments Our cross-border study covers six countries We examine outside director liability in the United Kingdom (U …

The Effects of Tort Reform on Medical Malpractice Insurers' Ultimate Losses

Abstract: Whereas the literature evaluating the effect of tort reforms has focused on reported incurred losses, this paper examines the long run effects using a comprehensive sample by state of individual firms writing medical malpractice insurance from 1984-2003. The long run effects of reforms are greater than insurers' expected effects, as five year developed losses and ten year developed losses are below the initially reported incurred losses for those years following reform measures. The quantile regressions show the greatest effects of joint and several liability limits, noneconomic damages caps, and punitive damages reforms for the firms that are at the high end of the loss distribution. These quantile regression results show stronger, more concentrated effects of the reforms than do the OLS and fixed effects estimates for the entire sample.

Finding ''Lost'' Profits: An Equilibrium Analysis of Patent Infringement Damages

Abstract: We examine the impact of patent infringement damages in an equilibrium oligopoly model of process innovation where the choice to infringe is endogenous and affects market choices. Under the lost profits measure of damages normally employed by U.S. courts, we find that infringement always occurs in equilibrium with the infringing firm making market choices that manipulate the resulting market profit of the patent holder. In equilibrium, infringement takes one of two forms: a “passive” form in which lost profits of the patent holder are zero and an “aggressive” form where they are strictly positive. Even though the patentee's profits are protected with the lost profits damage measure, innovation incentives are reduced relative to a regime where infringement is deterred.

Outside Director Liability

Abstract: This Article analyzes the degree to which outside directors of public companies are exposed to out-of-pocket liability risk - the risk of paying legal expenses or damages pursuant to a judgment or settlement agreement that are not fully paid by the company or another source, or covered by directors' and officers' (D&O) liability insurance. Recent settlements in securities class actions involving WorldCom and Enron, in which lead plaintiffs succeeded in extracting out-of-pocket payments from outside directors, have led to predictions that such payments will become common. We analyze the out-of-pocket liability risk facing outside directors empirically, legally, and conceptually and show that this risk is very low, far lower than many commentators and board members believe, notwithstanding the WorldCom and Enron settlements. Our extensive search for instances in which outside directors of public companies have made out-of-pocket payments turned up thirteen cases in the last twenty-five years. Most involve fact patterns that should not recur today for a company with a state-of-the-art D&O insurance policy. We offer a detailed assessment of the liability risk outside directors face in trials under corporate and securities law, including settlement dynamics. We argue that, going forward, if a company has a D&O policy with appropriate coverage and sensible limits, outside directors will be potentially vulnerable to out-of-pocket liability only when (1) the company is insolvent and the expected damage award exceeds those limits, (2) the case includes a substantial claim under section 11 of the Securities Act or an unusually strong section 10(b) claim, and (3) there is an alignment between outside directors' or other defendants' culpability and their wealth. Absent facts that fit or approach this perfect-storm scenario, directors with state-of-the-art insurance policies face little out-of-pocket liability risk, and even in a perfect storm they may not face out-of-pocket liability. The principal threats to outside directors who perform poorly are the time, aggravation, and potential harm to reputation that a lawsuit can entail, not direct financial loss. A companion article, Brian Cheffins & Bernard Black, Outside Director Liability Across Countries, 84 Texas Law Review 1385-1480 (2006), http://ssrn.com/abstract=438321, studies six comparison common-law and civil-law countries (Australia, Britain, Canada, France, Germany, and Japan). This article and Outside Director Liability Across Countries are the most fully developed of our articles on outside director liability. Earlier pieces of this overall project are listed below. http://ssrn.com/abstract=382422 (a pre-Enron and WorldCom version of this article) http://ssrn.com/abstract=878135 (policy analysis) http://ssrn.com/abstract=628223 (study of Korea) http://ssrn.com/abstract=682507 (summary article for a finance audience) http://ssrn.com/abstract=800584 (Germany-centered) http://ssrn.com/abstract=800604 (German language version of Germany-paper) http://ssrn.com/abstract=590913 (summary for practitioner audience)

Moral Judgment and Moral Heuristics in Breach of Contract

Abstract: Most people think that breaking a promise is immoral, and that a breach of contract is a kind of broken promise. However, the law does not explicitly recognize the moral context of breach of contract. Using a series of web-based questionnaires, we asked subjects to read breach of contract cases and answer questions about the legal, financial, and moral implications of each case. Our results suggest that people are quite sensitive to the moral dimensions of a breach of contract, especially the perceived intentions of the breacher. In the first study, we framed the motivation for a contractor's breach as either the chance to make more money or the chance to avoid losing money. Subjects were more punitive when the motivation appeared to be greed (breach to gain) than when the motivation appeared to be fear (breach to avoid loss). In the second study, we manipulated the timing of the negotiation over damages, comparing cases in which the promisor asks to negotiate damages before definitively breaching (as in a liquidated damages clause) with cases in which the breach has already occurred. We predicted that once the contract is breached, the moral violation becomes very salient, and we found that subjects were less punitive when they setting damages ex ante. Finally, results from the third study suggest that subjects seemed to believe that intentionally breaking a contractual promise is a punishable moral harm in itself. When presented with identical losses, one from an intentional breach of contract and the other from a negligent tort, subjects were more punitive toward the breacher than the negligent tortfeasor. They treated willful breach as an intentional harm.

Clamping Down on Terrorism in the United Kingdom

Abstract: There is a long history of laws responding to terrorism that have been utilized in the United Kingdom. This article outlines the important strands of development, including in the former colonies of the British Empire, in Ireland, and in mainland Britain itself. It offers an overview of contemporary legislation — the Terrorism Act 2000, the Anti-terrorism, Crime and Security Act 2001, the Prevention of Terrorism Act 2005 and the Terrorism Act 2006. These comprise a formidably detailed and complex code of measures, principally concentrating upon special police powers, offences and criminal processes, the proscription of organizations and the restriction of financial flows to the terrorists. The article then considers thematically some of the main controversies surrounding the laws. The discussion is organized around the following binaries: a rational code not panic legislation; a criminal justice model not a war model; the language of rights not the language of balance; international cooperation not unilateralism; appropriate structures not empty acronyms. The conclusions warn against undue optimism about the impact of the special laws and undue reliance upon the laws to an extent which damages the very values that the laws seek to protect.

Medical Malpractice Litigation and Tort Reform: It's the Incentives, Stupid

Abstract: Health care providers and tort reformers claim that the medical malpractice litigation system is rife with behaviors that are irrational, unpredictable, and counter-productive. They attack civil juries, asserting that verdicts are skyrocketing without reason, are highly variable, and bear little or no relation to the merits of plaintiffs' claims. They complain about patients, arguing that the few with valid claims sue rarely, while the many who receive non-negligent treatment sue all the time. They attack greedy lawyers, alleging that they rake in obscene profits by routinely filing frivolous complaints. Many of the preceding claims are facially implausible. The medical malpractice liability system is an enormous market whose principal trading partners - trial lawyers and liability insurers - are sophisticated, economically-oriented repeat players. They run the system, and they have the knowledge and incentives to select efficient means to accomplish their respective ends. Given this backdrop, their behavior and the behavior of the system they administer should not be random, or even particularly hard to explain. Nor, given the absence of market power and barriers to entry, should attorneys earn more than market-driven returns on the services they provide. Most of the preceding claims are also inconsistent with empirical studies of the medical malpractice liability system. These studies depict a system that is stable and predictable, that sorts valid from invalid claims reasonably well, and that responds mainly to changes in the frequency of errors and the cost of dealing with them. The system does have a number of pathologies, however, including its loading costs, the snail's pace at which it processes claims, and its failure to compensate patients injured by medical negligence as fully and as often as it should. It is possible to reform the liability system to address these shortcomings, but tort reform proposals like caps on non-economic damages and attorneys fees will not do so. The goal of these proposals is to reduce insurance prices by making the system less remunerative for claimants. If implemented, these measures will predictably worsen the problem of under-compensation, and weaken providers' incentives to protect patients from avoidable perils.

Leniency in Antitrust Enforcement: Theory and Practice

Abstract: This paper discusses the theory and practice of leniency in antitrust enforcement, i.e. the granting of immunity from penalties or the reduction of penalties for antitrust violations in exchange for cooperation with the antitrust enforcement authorities. After a description of the practice of leniency in the US and in the EU, and of its history, the paper analyses the positive effects and the possible negative effects of leniency on optimal antitrust enforcement, and the extent to which these effects can be measured. Objections of principle and institutional problems that may constitute obstacles to the introduction of leniency policies are discussed, as well as some further issues, namely the impact on the effectiveness of leniency of criminal penalties on individuals, of follow-on private damages actions, and of penalties in other jurisdictions, "Amnesty Plus," and positive financial rewards or bounties.

Juries, Judges, and Punitive Damages: Empirical Analyses Using the Civil Justice Survey of State Courts 1992, 1996, and 2001 Data

Abstract: We analyze thousands of trials from a substantial fraction of the nation's most populous counties. Evidence across ten years and three major datasets suggests that: (1) juries and judges award punitive damages in approximately the same ratio to compensatory damages, (2) the level of punitive damages awards has not increased, and (3) juries' and judges' tendencies to award punitive damages differ in bodily injury and no-bodily-injury cases. Jury trials are associated with a greater rate of punitive damages awards in financial injury cases. Judge trials are associated with a greater rate of punitive damages awards in bodily injury cases.

Who Owns Your Body? A Patient's Perspective on Washington University v. Catalona

Abstract: In 1890 a man sold the rights to his body after death to the Royal Caroline Institute in Sweden for research purposes. Later, he tried to return the money and cancel the contract. In the subsequent lawsuit, the court held that he must turn his body over to the Institute and also ordered him to pay damages for diminishing the worth of his body by having two teeth removed. Today, it would be an anathema for a person's body to be used against his wishes and for a research subject not to be allowed to withdraw from a study. In fact, the Uniform Anatomical Gift Act allows people to change their minds and withdraw a previous agreement to donate organs and tissue after their death and the federal research regulations allow people to withdraw from studies without penalty or loss of benefits.

Intellectual property litigation activity in the usa

Abstract: Brand names or trademarks carry incredible economic power and prestige. There is increasing recognition by world bodies that intellectual property (IP), whether manifested in patents, trademarks, copyrights or trade secrets, is highly valuable and must be protected through robust IP enforcement. The USA is an interesting natural laboratory as patent, trademark and copyright litigation battles have been raging domestically for some time. The paper discusses the four main forms of IP assets, the legal remedies that are available to enforce the property rights inherent in each type of IP asset, the basic damages theory relating to each form of IP, and how damages may be calculated when each type of asset is presumed to be infringed. The increased recognition of the value of IP has led to stronger enforcement of IP protection, an increase in IP litigation, and growing policy actions that are focused on how that protection should be manifested. An empirical analysis of how the IP litigation activity in the USA has changed over time is also presented.

Price of Permits: Measuring the Economic Impacts of Wetland Development on Flood Damages in Florida

Abstract: Floods continue to pose a significant threat to the property and safety of human populations in the United States. The economic impact from floods is estimated in the billions of dollars annually, and these losses are exacerbated by increasing development. This article examines the impact of wetland alteration on flood damage among local jurisdictions in Florida over a 7-year period. Specifically, we measure wetland loss through the record of permits granted under Section 404 of the Clean Water Act. Results show that, after controlling for environmental and socioeconomic variables, the number, type, and location of wetland permits are a significant predictor of flood damages.

Specific Performance versus Damages for Breach of Contract: An Economic Analysis

Abstract: When would parties entering into a contract want performance to be specifically required, and when would they prefer payment of money damages to be the remedy for breach? This fundamental question is studied here and a novel answer is provided, based on a simple distinction between contracts to produce goods and contracts to convey property. Setting aside qualifications, the conclusion for breach of contracts to produce goods is that parties would tend to prefer the remedy of damages, essentially because of the problems that would be created under specific performance if production costs were high. In contrast, parties would often favor the remedy of specific performance for breach of contracts to convey property, in part because there can be no problems with production cost when property already exists. The conclusions reached shed light on the choices made between damages and specific performance under Anglo-American and civil law systems, and they also suggest the desirability of certain changes in our legal doctrine. I. Introduction When would parties entering into a contract want performance to be specifically required, and when would they prefer payment of money damages to be the remedy for breach? I study this fundamental question here and come to a conclusion based on a simple distinction between two types of contracts: contracts to produce new goods or to provide services;1 and contracts to convey existing goods or other property.2 Setting aside qualifications, the conclusion that I reach is that parties would tend to prefer the remedy of damages for breach of contracts to produce things, whereas they would often favor the remedy of specific performance for breach of contracts to convey property.3 This conclusion will help us to understand the choices made between damages and specific performance under Anglo-American4 and civil law systems5 and suggests the desirability of certain changes in our legal doctrine. The conclusion and the analysis underlying it differ significantly from those in previous writing, as I will indicate after describing the organization and content of the Article. I begin in Part II with a theoretical, economically oriented examination of damages and specific performance.6 The question that I address there is what the parties to a contract would want the remedy for breach to be. The point of departure for the analysis of this question is that contracting parties should in principle agree ex ante to choose the remedy that would maximize the joint value of the contract to them-where the joint value is the value gained by the parties less any expenses, costs of bargaining, and risk-associated disutility. The parties should want to maximize joint value essentially because if a proposed remedy does not lead to the highest joint value, both parties can be made better off by agreeing to another remedy, generally after making a suitable price adjustment. If, for instance, they were contemplating specific performance but that remedy would lead to lower joint value than a damage measure, both the seller and the buyer can be made better off by changing from specific performance to the damage measure, after lowering the price to compensate the buyer if the buyer is made worse off because the seller no longer guarantees performance. I initially consider the choice of remedy in the context of contracts to produce (say, a contract to excavate a construction site). Here I explain that specific performance involves four disadvantages that would often lower joint contractual value.7 First, sellers might have to perform even though performance is very expensive (suppose that an excavator unexpectedly encounters hard rock) and outweighs its value to the buyer. Of course, in such circumstances, sellers might also negotiate for their release, but that would involve bargaining costs and might not result in an agreement. Second, the prospect of these problems associated with high production expense might lead sellers to take wasteful avoidance steps (such as purchasing rock-crushing machines even though the expenditure is intrinsically uneconomic). …

The Hidden Victims of Tort Reform: Women, Children, and the Elderly

Abstract: I have conducted empirical research from several states on how juries in medical malpractice and other tort suits allocate their damage awards between economic loss damages and noneconomic loss damages. I then compared cases in which men are the victims and cases in which women are the victims. This research demonstrates that while overall men tend to recover greater total damages, juries consistently award women more in noneconomic loss damages than men, and that the noneconomic portion of women's total damage awards is significantly greater than the percentage of men's tort recoveries attributable to noneconomic damages. Consequently, any cap on noneconomic loss damages will deprive women of a much greater proportion and amount of a jury award than men. Noneconomic loss damage caps therefore amount to a form of discrimination against women and contribute to unequal access to justice or fair compensation for women.

Climate Change and Extreme Events: an Assessment of Economic Implications

Abstract: We use a general equilibrium model of the world economy, and a regional economic growth model, to assess the economic implications of vulnerability from extreme meteorological events, induced by the climate change. In particular, we first consider the impact of climate change on ENSO and NAO oceanic oscillations and, subsequently, the implied variation on regional expected damages. We found that expected damages from extreme events are increasing in the United States, Europe and Russia, and Russia, and decreasing in energy exporting countries. Two economic implications are taken into account: (1) short-term impacts, due to changes in the demand structure, generated by higher/lower precautionary saving, and (2) variations in regional economic growth paths. We found that indirect short-term effects (variations in savings due to higher or lower likelihood of natural disasters) can have an impact on regional economics, whose order of magnitude is comparable to the one of direct damages. On the other hand, we highlight that higher vulnerability from extreme events translates into higher volatility in the economic growth path, and vice versa.

The Emerging Recognition of Universal Civil Jurisdiction

Abstract: This paper traces the emerging recognition of universal civil jurisdiction, which is a doctrine that would permit victims of the most serious violations of international law to bring tort claims for damages in any national jurisdiction, regardless of the location of the conduct or the nationality of the victim or defendant. We examine the rationale for such a doctrine, the existence of state practice in support of and against, and the appropriate limitations that might operate on the exercise of such jurisdiction.