Limitations on Punitive Damages Against Insurers Since State Farm v. Campbell: Lessons for Insurers
This article focuses on the limitations imposed on punitive damages awards by the United States Supreme Court, concentrating tm how these limitations have been applied by lower courts in actions against insurance companies. The article begins by examining the Supreme Court's three "guideposts" for determining whether a punitive award complies with due process. The article focuses on the compensatory damages predicate for determining a punitive award pursuant to the second "guide­ post" requiring trial courts to examine the ratio between actual and potential harm and the punitive award. The article examines what types of damages have been included in the predicate in bad-faith claims against insurers, and argues that under black-letter contract law, only the plaintiff's bad-faith tort damages should be included in the actual or potential harm side of the ratio. Finally, the article examines how the "reprehensibility" of insurers' conduct has affected punitive awards against insurers.
Taming the Tort Monster: The American Civil Justice System as a Battleground of Social Theory
doctrine. See Karl Llewellyn, Some Realism About Realism-Responding to Dean Pound, 44 HARV. L. REV. 1222, 1236-38 (1931) (presenting legal realism as "movement in thought and work about the law" within which certain points of departure are common); see also Roscoe Pound, The Call for a Realist Jurisprudence, 44 HARV. L. REV. 697, 697 (1931) (discussing approach of legal realists as requiring "faithful adherence to the actualities of the legal order as the basis of a science of law"). 8 RICHARD A. POSNER, THE PROBLEMS OF JURISPRUDENCE 12 (1990). 69 Id. 60 Id. at 13. 61 Id. at 12. 6 Id. POSNER, supra note 58, at 12.
How Do Judges Think about Risk
A sample of almost 100 judges exhibited well-known patterns of biases in risk beliefs and reasonable implicit values of life. These biases and personal preferences largely do not affect attitudes toward judicial risk decisions, though there are some exceptions, such as ambiguity aversion, misinterpretation of negligence rules, and retrospective risk assessments in accident cases, which is a form of hindsight bias. Although judges avoided many pitfalls exhibited by jurors and the population at large, they nevertheless exhibited systematic errors, particularly for small probability-large loss events. These findings highlighted the importance of judicial review and the input of expert risk analysts to assist judicial decisions in complex risk cases. Copyright 1999 by Oxford University Press.