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Remedies can be categorized as monetary or nonmonetary. Although much litigation leads to monetary awards, many cases end without a monetary award. Injunctive relief, orders to speciﬁcally perform contracts, divorce decrees, probate of wills, and other orders do not necessarily involve damages or monetary payments.
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1. Nonmonetary Relief
Several categories of nonmonetary relief exist and their use varies across countries. In contract law, countries divide into three groups with respect to the availability of speciﬁc performance: (a) countries, such as Germany and socialist systems, in which speciﬁc performance is generally available, subject to exceptions, (b) countries, such as France, which make speciﬁc performance available for speciﬁc obligations, and (c) common law countries, including England and the United States, in which speciﬁc performance is an exceptional remedy, available in limited circumstances.
Nonmonetary relief to prevent injury can be more important than redressing injuries already done. Common law countries address this need by allowing injunctive relief in cases in which irreparable harm can be demonstrated. Other legal systems, such as Germany, Switzerland, Austria, and others inﬂuenced by German law, have a general class of actions to prevent threatened injury. Courts in such systems have less discretion to deny preventive remedial relief than do common law courts. Some systems allow remedial relief but lack a coercive component, such as the penalties for violating an injunction, to enforce it (Stoll 1983). Prejudgment nonmonetary remedies, such as attachment and preliminary injunction or its equivalent, are widely available.
2. Damages Rules Across Countries
With respect to monetary relief, one cannot completely separate the question of the quantum of damages from the question of liability. Blackstone, in writing about the common law, did not regard damages as a separable ending of the legal process. The right to damages arose the instant the victim was injured. Nevertheless, one can intelligently address many damages issues independently of the question whether any damages should be awarded.
In the last quarter of the twentieth century, damages issues fueled the tort reform movement in the United States and alarmed foreigners doing business in the United States. In many respects, however, damages rules are not strikingly diﬀerent between the United States and other countries. All countries seek to compensate victims fully, though most depend more on social compensation systems than does the United States. Most countries allow consideration of the injured person’s fault, a consideration similar to the United States doctrine of comparative negligence, and a few (the Netherlands and Sweden) allow for mitigation of damages in view of the parties’ ﬁnancial circumstances and insurance coverage. European and Japanese damages rules governing injury, though less feared than United States rules, are not necessarily simpler (Pfennigstorf 1991). They contain ‘a confusing variety of items of non-pecuniary loss and an equally confusing variety of methods for measuring them.’
There are, however, diﬀerences in the size of awards. Non-United States systems produce lower and more predictable within-country awards. Courts in several countries observe written and unwritten guidelines with respect to awards. In Japan and Sweden, for example, expert commissions establish consistent guidelines for automobile accidents. Sweden extends this practice to injuries caused by medical mistreatment, by pharmaceutical drugs, and by environmental pollution. Across European countries, however, awards are less consistent. One study estimates that in a wrongful death case involving a 20-year old victim with no dependents, awards across Europe would vary from £210,122 in Italy to £1,250 in England; it also ﬁnds that pain and suﬀering awards vary considerably across countries (McIntosh and Holmes 1990).
3. Social Scientiﬁc Study Of Compensatory Damages
Media reports, which understandably emphasize extreme awards, promote exaggerated perceptions of large United States damages awards. The media over report products liability and medical malpractice cases, exaggerate plaintiﬀ win rates, and distort impressions about the actual distribution of jury awards. Social scientiﬁc assessment of damages is critical in helping to ameliorate the eﬀect of this reporting bias.
3.1 General Adequacy Of Damages
Despite agreement that awards are higher in the United States, there is little evidence that injury victims are systematically overcompensated in any country. Evidence exists that United States plaintiﬀs with small losses tend to be overcompensated but that plaintiﬀs with large losses tend to be undercompensated (Vidmar 1998). Yet it is the large loss cases that tend to be the most controversial. An English study found that serious injuries may not result in substantial recoveries and that minor injuries which do lead to recoveries may have unexpectedly severe consequences (Law Commission 1994). Both ﬁndings suggest systematic under compensation.
3.2 Award Levels And Trends
The most studied system of damages is the tort system in the United States. Concerns about the level of awards, time trends in awards, and the relative competence of judges and juries have generated several studies. Data gathered by the National Center for State Courts from 45 of the largest 75 United States counties, under grants from the Bureau of Justice Statistics (1995, 1999) (‘BJS’), provide the least biased sample of awards in litigation. The data allow for meaningful comparisons across case categories. Since the same 45 counties were surveyed in both 1991 and 1996, the data also allow meaningful comparisons over time, discussed below. Table 1 summarizes the pattern of jury compensatory damages awards, in thousands of 1998 dollars, for these 45 counties.
Table 1 shows that damages awards vary substantially by case category. Median compensatory damages awards are highest in cases involving products liability and medical malpractice. Indeed, median awards in these case categories are substantial multiples of the median award in automobile accident cases. The levels of awards are generally modest and are consistent with other comprehensive studies of particular jurisdictions.
3.3 Reliability Of Compensatory Awards
In studies that include independent assessments of the defendant’s behavior, damages awards correlate with the nature and degree of the wrong. Studies of medical malpractice cases show that those who behaved the worst and caused the most harm are the most likely to pay the most damages. Experimental studies conﬁrm these ﬁndings (for example, Wissler et al. 1999). Osborne (1999) uses a diﬀerent methodology but reaches similar results. His study includes many substantive areas of law and examines the relation of court awards to the pretrial expectations of litigants and their attorneys and to measurable, economically relevant damages, He ﬁnds that court awards are highly predictable, as variance in expectations explains much of the variance in awards. The awards also signiﬁcantly relate to both medical costs and property damage. He rejects the hypothesis of a highly unpredictable court system.
4. Punitive Damages
Punitive or exemplary damages are in addition to the damages awarded to make the victim whole. But normally punishment is left to the state, not to private civil litigation. Thus, many legal systems do not allow damages beyond those necessary to compensate the victim. Little authority exists for punitive damages in Roman law and thus in some of the continental European systems that derived from it. But many countries allow punitive damages or their equivalent (exemplary damages, moral damages) in some classes of cases. And the European Court of Justice has ruled that national courts must be willing to award exemplary damages pursuant to claims or actions founded on Community law, if such damages may be awarded pursuant to similar claims based on domestic law. Nevertheless, punitive damages are substantially less important outside the United States.
The most discussed questions in the recent United States literature on damages relate to punitive damages. Understandably skewed media coverage emphasizing high awards combined with advocacy by lobbying groups has generated enormous pressure on punitive damages law and helped to shape professional and public impressions. Business lobbying groups have enjoyed some success, with several states enacting provisions raising the burden of proof for punitive damages claims, placing monetary ceilings on awards, and otherwise limiting the likelihood and size of punitive awards.
Social science research on punitive damages expanded as a result of the 1994 award of $5 billion in punitive damages against Exxon Corporation (now Exxon Mobil) for the 1989 Exxon Valdez oil spill. Exxon funded several leading academics, who produced an impressive body of work that makes important social science contributions. All of this work is critical of punitive damages and supports ‘reform.’ But the thrust of some of the work seems inconsistent with prior theoretical discussions of punitive damages and some of it has been criticized as methodologically unsound (for example, Eisenberg 1998, Vidmar 1998) and as overstating its implications.
4.1 Rate Of Punitive Awards
The social science picture that emerges from systematic studies of actual cases diﬀers in some respects from the implications of the experimental and theoretical results of the Exxon-funded work. Three large studies of punitive damages awards, Moller (1996), Daniels and Martin (1995), and data commissioned by the BJS (1995), cover multiple United States jurisdictions, cover similar time periods, and include case categories that are suﬃciently well deﬁned to warrant comparison. Each of the three sources reveal overall punitive damages award rates of less than ten percent in successful jury trials.
In two of the areas of greatest interest to policymakers, products liability and medical malpractice litigation, punitive awards are especially rare. In medical malpractice cases, the 95 percent conﬁdence intervals for all three sources overlap and show awards in less than ﬁve percent of jury trials in which plaintiﬀs are successful. In products liability cases, all three estimates again overlap at under ten per cent of successful jury trials, and rates under ﬁve percent are found in studies of published opinions. Except in case categories dominated by fraud and employment law issues, all punitive award rate levels are likely less than ten percent, and many are less than ﬁve percent. These social scientiﬁc analyses undermine the belief that punitive damages are frequently awarded.
4.2 Level Of Punitive Damages Awards
Large, publicized punitive awards, such as that against Exxon, create the impression that punitive awards are on average much larger than they truly are. BJS data for 1991 and 1996 allow one to assess the level of punitive damages awards. Table 2 summarizes punitive damages awards, in thousands of 1998 dollars, for the years 1991 and 1996. Median punitive damages awards have been more modest than the headline grabbing awards. In both years they are in the 50,000 dollar range. Mean punitive awards are substantially aﬀected by extremes. Excluding the most extreme punitive award in each year, reduces the mean by over 25 percent in one year and by over 50 percent in the other. In these data, million-dollar awards constitute less than 10 percent of the punitive awards. All studies conﬁrm that the bulk of punitive awards are modest.
4.3 Relation Between Punitive And Compensatory Awards
A criticism of punitive damages is that they bear no relation to the compensatory award—the punishment inﬂicted therefore is not proportional to the harm caused. And the United States Supreme Court has indicated that a punitive damages award normally should bear a reasonable relation to the compensatory award. Social scientiﬁc analysis suggests that punitive awards do relate to compensatory awards. Figure 1 shows the relation (in logs) between compensatory and punitive awards in the BJS (1995) study of 45 counties. It shows an unmistakable correlation. Other data sets reveal approximately the same relation (Eisenberg et al. 1997).
Punitive damages awards are thus rarer, smaller, and more closely related to compensatory awards than is widely believed.
5. Time Trends
5.1 Compensatory Damages Awards
Table 1 allows study of award trends over time. Popular perception has it that damages awards are ever-increasing. And some empirical study supports the claim. But these studies have been questioned on methodological grounds (Vidmar 1998). Table 1 shows little systematic evidence of increasing awards. In several case categories, median or mean awards decreased from 1991 to 1996. The only statistically signiﬁcant change in mean awards was in automobile accident cases and here the 1996 mean (in logs) was statistically signiﬁcantly lower than the 1991 mean (p = 0.001). Other changes in award patterns were not statistically signiﬁcant.
Table 1 is limited to state court cases. Awards in federal court cases tend to be higher, at least partially because of jurisdictional amount requirements in federal court. Median trial awards in federal courts products liability cases did increase from the early 1980s to the mid-1990s. The increase also occurred in judge-tried cases and in contracts cases.
5.2 Punitive Damages Awards
Punitive damages, like compensatory damages, are often said to be ever-increasing in number and size. The two years of BJS jury-trial data allow one to compare the rate and size of punitive awards in the 45 large counties covered by the data. Table 2 summarizes the results, in thousands of 1998 dollars, for the years 1991 and 1996. It shows that median punitive awards were substantially lower in 1996 than 1991. Mean awards were higher in 1996 but that is a function of a few large cases. The means (log) are not statistically signiﬁcantly diﬀerent. Regression analysis that controls for locale and case category conﬁrms that punitive damages show no statistically signiﬁcant movement from 1991 to 1996.
Table 2 also shows that the frequency of punitive damages awards decreased in these 45 counties, from 168 in 1991 to 119 in 1996. Thus, even minimal social scientiﬁc analysis provides no support for the belief that punitive damages awards are ever-increasing in size or frequency.
6. The Importance Of The Adjudicator
It is widely believed that the choice of adjudicator— judge, jury, arbitrator—substantially aﬀects the damages awarded. Higher and more variable awards in the US are attributed to the greater role of jurors as adjudicators. While real diﬀerences exist across adjudicator groups, the social scientiﬁc evidence supports skepticism about claims of massive diﬀerences across adjudicators. The classic Kalven and Zeisel study used questionnaires to presiding judges in about 4,000 actual civil jury trials in the 1950s (Kalven and Zeisel 1966). Their data showed a 78 percent agreement rate between judge and jury on liability, with no revealing pattern in the cases of disagreement. The rate of judge-jury agreement is high compared to other human endeavors. They also showed that jurors awarded on average 20 percent more than judges said they would have awarded. The modest judge-jury diﬀerences reduced interest in attacks on juries.
Renewed attacks on the jury’s competence to assess damages, and especially punitive damages, re-emerged in the 1980s and 1990s. Research using interviews and experiments ﬁnds that diﬀerent decision-makers are quite similar and predictable with respect to their judgments of injury severity (Wissler et al. 1999). Such research also ﬁnds that jurors’ awards lose consistency in translating severity of injury into dollar awards. Other studies suggest somewhat lesser judge-jury diﬀerences. Vidmar and Rice (1993) report experimental evidence about jurors awaiting jury duty and legal professionals bearing on pain and suﬀering awards. In a medical malpractice burn case, they found that six-person juries would give more variable awards than twelve-person juries but that both groups would be less variable than individual legal professionals. Their second experiment involved an automobile accident case and a medical malpractice case. They found no diﬀerences between jurors and legal professionals.
Studies of actual cases, which lack the controls of experimental settings but provide the relevant setting, suggest modest adjudicator diﬀerences. Osborne’s (1999) study compares the predictability of judge and jury awards based on litigant expectations. He ﬁnds that one can reject the hypothesis that jury trials are largely random events. Litigant expectations explain more than a third of the variance in awards. And he ﬁnds that the behavior of judges is not signiﬁcantly more predictable than that of juries. Helland and Tabarrok (2000) conclude that most diﬀerences between judge and jury awards can be explained by diﬀerences in the sample of cases coming before judges and juries but that some suggestive diﬀerences exist. Eisenberg et al. (2000) ﬁnd little meaningful diﬀerence in the pattern of judge and jury punitive damages awards.
Exxon-funded research ﬁnds experimental evidence of vast judge-jury diﬀerences. For example, Hastie and Viscusi (1998) report mock jurors to be much more likely than judges to impose punitive sanctions in a hypothetical railroad accident case. Vast judgejury diﬀerences on liability in these new studies, which contrast with Kalven and Zeisel’s and other ﬁndings, calls into question the experimental designs’ ability to detect socially meaningful punitive damages diﬀerences between judges and juries.
7. Overall Assessments And Comparisons Of Damages Awards
Greater injuries lead to greater damages awards in all systems for which data are available. With respect to variability in the United States, where variability is regarded as greatest, from half to almost three-fourths of awards’ variation can be accounted for by measures of injury severity, as well as by other predictors, but a substantial random component also exists. Legal systems that rely on schedules of damages for various injuries have lower variability though not necessarily more complete compensation.
Prospects for deﬁnitive social scientiﬁc comparison of damages rules’ operation are dim. Some inherent limitations apply to comparing performance of legal rules across state and national boundaries. The number of diﬀering legal systems will tend to be small— there are, for example, only 50 states and gathering useful damages information about that many countries is an enormous task. Important diﬀerences, such as varying reliance on social compensation systems, diﬀerent mixes of cases reaching court systems, diﬀerent methods for compensating attorneys, and varying standards of living and purchasing power need to be considered. For the foreseeable future, reasoned analysis of data available for individual jurisdictions and informal comparison across jurisdictions will have to suﬃce in assessing performance of the damages component of remedial systems.
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