Anthony J. Sebok

Punitive Damages in the United States

According to black letter doctrine, punitive damages “are damages, other than compensatory or nominal damages, awarded against a person to punish him for his outrageous conduct and to deter him and others like him from similar conduct in the future.”1 A jury (or judge, under some circumstances) may, in its discretion, render punitive damages in cases in which the defendant is found to have injured the plaintiff intentionally or maliciously, or in which the defendant’s conduct reflected a conscious, reckless, wilful, wanton, or oppressive disregard of the rights or interests of the plaintiff. No state allows punitive damages on a showing of simple or mere negligence. Punitive damages may be assessed against an employer vicariously for the misconduct of its employees, although some states restrict such awards to instances where a managing officer of the enterprise ordered, participated in or consented to the misconduct. The amount of a punitive damages award is determined by the jury upon consideration of the seriousness of the wrong, the seriousness of the plaintiff’s injury, and the extent of the defendant’s wealth.

Editor’s Introduction to the Symposium “MacPherson at 100: Reflections On Its Influence”

DOI 10.1515/jtl-2016-0012 Published online August 11, 2016 There is a well-known adage that “history is written by the victors.” In the history of American tort law there are few clear victories, but if there are any, surely Judge Benjamin N. Cardozo’s opinion in MacPherson v. Buick Motor Co. must count as one of the most decisive ever won in the state or federal courts. As William Prosser put it, somewhat dramatically, in 1916 Cardozo “wielding a mighty axe, burst over the ramparts, and buried the general rule” – that had been in force for centuries – “of nonliability to persons not in privity.” It seemed like a good idea, then, to follow the path of history and hold a centennial celebration for this signal moment in American tort law, which is why the Torts and Compensation Systems section of the American Association of Law Schools chose to select MacPherson as its topic for its annual meeting in January 2016. Further, based on the conventional reading of history mentioned in the adage above, it seemed appropriate to assume that the panel would begin with the premise that, like other great battles, MacPherson’s influence would be easy to identify and analyze. Hence the title of the panel: “MacPherson at 100: Reflections On Its Influence”.

Introduction to comparative tort law: Global perspectives

A book with the title ‘Comparative Tort Law: Global Perspectives’ must be carefully explained to its readers so as to avoid certain confusions. Let us start by making clear what the book is not. Although the title might suggest otherwise, this book is not about international tort law or transnational tort law. This book has no reductive or globalizing ambitions. The purpose of the book is decidedly not to resemble a digest or an encyclopedia. A book about the tort law of the entire world would be an impossible task – the recently completed Comparative Studies in the Development of the Law of Torts in Europe published by Cambridge University Press is nine volumes and it presents only part of the tort law of one legal family, Europe. Finally, this book is not intended to summarize the vast body of scholarship that covers tort law around the globe, nor does it offer a normative tort theory rooted in the history of any one (or all) family/families of tort law.

Jeffrey O’Connell and the Market in Tort Claims

Abstract This article examines a transitional period in Jeffrey O’Connell’s long and productive career as an observer and critic of the American civil justice system. By the early 1970’s O’Connell had begun to abandon enterprise liability as a solution to the waste and undercompensation he saw in the tort system. Eventually O’Connell would develop solutions that focused on constraining plaintiffs’ attorneys, and less on no-fault compensation. Before reaching this point, O’Connell proposed a no-fault insurance scheme that would be paid for by fault-based tort litigation. This proposal, which he called “elective first party no-fault insurance” (“EFPI”) is the focus of this article. In EFPI tort suits would not disappear, and damages would not be limited, but litigation would be conducted by insurers who had been assigned their insured’s lawsuits. This article describes how this novel tort reform would work, and explores the theoretical assumptions upon which it is based. One assumption in particular, which is examined, is that a market in tort litigation could be socially efficient if the right sort of plaintiffs’ lawyers were recruited to conduct it. Finally, this article points out that O’Connell called for the repeal of champerty laws at least a decade before many other modern legal academics focused on the potential of a market in litigation.