Damages

About: Damages is a research topic. Over the lifetime, 9365 publications have been published within this topic receiving 89750 citations. The topic is also known as: compensation award.

Patent Holdup, the ITC, and the Public Interest

Abstract: The Supreme Court's eBay decision requires district courts to weigh the equities before permanently enjoining a defendant. This is a good thing. Since eBay, the tactic of threatening injunctions to, in the Court’s words, “extract exorbitant fees” has declined. It's now harder for a patent assertion entity (PAE), or patent “troll," and in certain cases, operating companies, to win an injunction. But eBay’s discretionary test doesn’t apply at the ITC. This has had the unintended consequence of driving those who seek to circumvent eBay's ruling to the ITC, where the odds of getting an injunctions are better. In this paper, we document that trend, which is dramatic. Increasingly, cases filed at the ITC are filed by PAEs against an entire industry, often information technology. Practicing entities too have turned to the ITC to seek injunctions district courts won't give them, for example on patents covering industry standards. Because the ITC can’t award damages, it has granted injunctions as a matter of course. But as we suggest in this paper, the Commission has more power to adjust the remedy it grants than previously recognized. We think it should use that flexibility to limit exclusion orders when competitive conditions demand it. A PAE may not be any more justified to receive an exclusion order from the ITC under its public interest analysis than to receive an injunction from a district court applying eBay. Even practicing entities should be denied the power to exclude in some circumstances, for example when the patents are standards-essential and/or encumbered by a RAND license, there is no evidence of bad faith, and the patentee can seek damages in the district court. When exclusion orders are issued, delays in their implementation and grandfathering in existing products can reduce holdup. Bond and penalty provisions could be used to ensure that patentees are compensated for ongoing infringement during these transition periods. Using its discretion wisely, the ITC can administer the statute to fairly and efficiently give patentees their due while minimizing harm to the public interest.

Putting a Price on Pain-and-Suffering Damages: A Critique of the Current Approaches and a Preliminary Proposal for Change

Abstract: I. INTRODUCTION Seventeen volumes and seventeen years ago, the editors of the Northwestern University Law Review made a wise decision. They accepted for publication an article-Valuing Life and Limb in Tort: Scheduling Painand-Suffering-which has become one of the most important pieces concerning pain-and-suffering damages in the legal literature.1 Like many great works, this paper was a joint effort of multiple scholars: Randall Bovbjerg, from the Urban Institute in Washington, D.C.; Frank Sloan, an economics professor at Vanderbilt University; and James Blumstein, a law professor, also at Vanderbilt. In their paper, Bovbjerg, Sloan, and Blumstein (hereinafter "BSB") took upon themselves a daunting task: analyzing various ways to put a price on the unpriceable, a person's pain and suffering. Nothing much has changed since BSB's seminal paper. Pain-andsuffering awards seem to continue to make up approximately fifty percent of total awards, at least in some areas of personal injury cases.2 Juries, judges, lawyers, lawmakers, and academics still struggle with the same dilemma BSB tackled: what is the best way to adequately compensate tort victims for the noneconomic harms they incur? In many ways, BSB's paper is as relevant today as it was seventeen volumes ago. In what follows I attempt to explain some of BSB's suggestions for pricing pain and suffering. I will also explore a number of other proposals that have since been introduced. The theoretical approach I adopt in this Essay to the pricing of pain and suffering is the approach BSB adopted in their paper, which is to analyze it from a law and economics standpoint, which also incorporates a limited notion of global fairness.3 From a law and economics perspective, the threshold question of the appropriateness or desirability of pain-and-suffering damages is not yet settled. A rule of thumb for conceptualizing the problem within the framework of law and economics is to ask whether awarding pain-and-suffering damages contributes to the two objectives of tort law: adequate incentives for potential tortfeasors to exercise due care (the "deterrence" rationale); and the efficient spreading of victims' losses to a larger pool (the "insurance" rationale). Scholars who support pain-and-suffering damages argue that, from an optimal deterrence perspective, defendants should bear the full social cost of their conduct, which includes pain-and-suffering costs.4 According to this view, pain-and-suffering damages actually compensate for a concrete loss: disfigurement, emotional trauma, extended physical discomfort, and loss of normal life-enhancing capacities. These are all very real things, not any less real than loss of potential future income. This view rejects the idea that pain and suffering is simply not a serious component of a plaintiffs loss.5 Yet a number of scholars persistently object to pain-and-suffering damages altogether. They either think that pain-and-suffering awards are not required for optimal deterrence,6 or that there is no room for subjective valuations in tort law,7 or both.8 From the perspective of the other goal of an optimal tort regime-the insurance rationale-the desirability of pain-and-suffering damages is more questionable. In other words, it is not clear whether a rational and informed individual would have purchased pain-and-suffering coverage in a free market if such insurance coverage existed. Scholars who support pain-andsuffering damages on the insurance rationale justify their beliefs with indirect evidence that sovereign consumers would demand and pay for some level of coverage for pain-and-suffering losses in a hypothetical (first-party) insurance contract.9 Other scholars provide indirect evidence that sovereign consumers would prefer not to pay for any coverage at all.10 In a recent paper, I offered direct experimental evidence that pain-and-suffering damages may be warranted even under the optimal insurance rationale. …

성구매 금지와 인신매매 척결: 스웨덴의 성매매 관련법 (Prohibiting Sex Purchasing and Ending Trafficking: The Swedish Prostitution Law)

Abstract: The English version of this paper can be found at http://ssrn.com/abstract=1966130The Swedish prostitution law from 1999, now followed by Norway and Iceland, criminalized the purchaser and decriminalized the prostituted person. This is analyzed as a cogent state response under international trafficking law, particularly to the obligations set forth in the United Nation’s Trafficking Protocol from 2000. The Protocol states that a person is regarded a trafficking victim when, e.g., someone abuses her “position of vulnerability” in order to exploit her. International jurisprudence and social evidence strongly suggest that prostitution, as practiced in the world, usually satisfies this definition. Further, the Protocol urges states to reduce the demand for prostitution and to protect and assist victims, for instance by adopting laws deterring purchasers of sex, and by supporting those exploited in prostitution. Policy makers, such as the U.S. Department of State, are criticized for taking an inadequate position in face of the growing evidence from the Swedish law's impact.The article shows that Sweden has significantly reduced the occurrence of trafficking in Sweden compared to neighboring countries. It also scrutinizes some misinformation of the law's impact, showing for instance that claims alleging a more dangerous situation for those still in prostitution after 1999 were unfounded. In addition, the article addresses remaining obstacles to the law's effective implementation, arguing that in order to realize the law's full potential to support escape from trafficking, the civil rights of prostituted persons under current law should be strengthened to enable them to claim damages directly from the purchasers for the harm to which they have contributed, and for the violation of the prostituted persons' equality and dignity - a position now recognized by the government to some extent by clarifying amendments made in 2011.

Transportation and Air Pollution: The Environmental Damages

Abstract: This paper examines estimates of the damages caused by air pollution emissions from transportation sources. The paper first provides a summary of dollar per gallon air pollution damage estimates from twenty studies. Next, new nationwide estimates of damages associated with air emissions are presented. Finally, three key issues in the estimation of damages are discussed.