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In the enforcement of European competition law, both public and private actors play a role. Public enforcement dominates. Leniency programs give cartelists incentives to reveal the cartel and disclose relevant information to the competition authority. The incentives originate from a reduction in sanctions. Directive 2014/104/EU aims at removing practical obstacles to compensation for victims of infringements of EU competition law. The literature suggests that facilitating private damages actions tends to limit the effectiveness of leniency programs. If victims are able to claim compensation, the incentive to apply for leniency may vanish. In addition to the literature, this paper not only considers the effect of private damages on incentives to apply for leniency, but also explores the consequence for deterrence and consumer welfare. Specifically, this paper investigates the implications of an improvement in the claim position of victims for (1) decisions to start or continue a cartel, (2) decisions to apply for leniency, and (3) consumer welfare. Cartelists' behavior is analyzed in a dynamic setting. The paper finds that a marginal improvement in the position of victims in most cases leads to an increase in consumer welfare but not in deterrence. In some cases, it also leads to an increase in deterrence, and, in exceptional cases, makes consumers worse off because cartelists refrain from applying for leniency. [ABSTRACT FROM AUTHOR]

This paper examines an idea which has made some headway into legal scholarship and case law, namely, that the violation of a right ought to sound in substantial (compensatory) damages in and by itself, independently of any factual loss caused to the claimant. This doctrine of 'normative damages' was rejected, rightly, by the High Court of Australia in the wrongful imprisonment case of Lewis v. ACT in 2020. However, although the rejection was unanimous, its clarity was undermined by the fact that the issue of normative damages was intertwined with considerations of causal counterfactuals and the definition of false imprisonment. This article considers the doctrine in a broader perspective, examining where it has come from and arguing that normative damages are wrong as a matter of principle: not only do they contradict foundational principles of the Anglo-Commonwealth law of damages, they effectively amount to considering the same injury twice. [ABSTRACT FROM AUTHOR]

There are various obstacles within the EU Member States, which currently prevent, to a greater or lesser extent, the possibility to successfully obtain damages for harm caused by an infringement of the EU competition rules. On 26 November 2014, an EU Directive on antitrust damages actions was adopted. This sets out some minimum ground rules in order to level the playing field across the Member States with a view to making it easier to actually pursue such actions and claims successfully. On a broader level, the Directive has incorporated specific provisions to promote the effective use of consensual dispute resolution as an alternative route to enabling the victims of EU competition law infringements to obtain compensation. This paper discusses the provisions of the Directive, in terms of its potential impact on the use of arbitration to obtain private damages within the EU. It outlines and analyses the existing legislative framework in relation to the public and private enforcement of EU competition law within the EU, the possibility to arbitrate EU competition law infringements and arbitration of EU competition law in practice. It then outlines and discusses both the provisions of the Directive in relation to consensual dispute resolution and some of its most relevant and noteworthy other provisions, in particular with regard to their potential impact on the arbitration of cases involving EU competition law infringements. Finally, the paper concludes on the potential for arbitration in this area in the future and whether the Directive is likely to have much of an impact in this regard. [ABSTRACT FROM AUTHOR]

The law on compensation of non-pecuniary loss in The Netherlands is in this paper approached from a historic perspective, because this sheds light on the current debate which still seems to fight the historical Dutch reluctance towards this head of damages. Dutch law and legal thinking on non pecuniary loss have developed against a background of Roman law, Canon law and indigenous law. Compensation for non pecuniary loss was certainly possible before the codifications of the 19th century; the code of 1838 was ambiguous about it and led to much discussion and ambivalent case-law. Not until 1943 was the issue decided by the Dutch Supreme Court, in favour of compensation. The right to compensation of non-pecuniary loss was in the modern Civil Code of 1992 explicitly granted in both contract and tort and is recognized in a number of types of cases, limitedly enunciated by statute. This ‘closed model’ does, nevertheless, not impede the courts from developing the categories of cases in which a right to compensation is accepted. In this paper these developments are described and evaluated. Furthermore, perspectives and desires for further developments with regard to damages for bereavement, satisfaction in case of infringements of fundamental rights, improvement of the assessment of quantum and increase of quantum are drawn and advocated. [ABSTRACT FROM AUTHOR]

This paper seeks to give an integrated and critical account of the availability of damages for non-pecuniary loss in England and Wales across contract and tort. In the past the availability of such damages in the law of obligations has been addressed in the context of separate discussions of available remedies for either breach of contract or the commission of a tort. The proposal in this paper is structured around a variation of a six-fold classification which has received recent endorsement by the English Court of Appeal in the important and remarkable, but mostly unnoticed, case of Simmons v Castle (2012). [ABSTRACT FROM AUTHOR]

Over the years, the number of damages claims has increased. The level of compensation, however, has understated the true harm suffered by purchasers. Hence, victims of a breach of antitrust rules are not fully compensated. This is true especially for consumers because the large majority of damages cases pertain to nonconsumers claiming damages. There has been some case-by-case empirical research on consumer damages but no methodological study has been done on the calculation of consumer compensation in general. This paper aims to fill that gap. By using the example of a cartel, we consider different calculation methods. We determine the theoretical upper and lower limits for compensation. These limits can be easily applied in practice when the consumer's income spent on a cartel good and the overcharge are known. More importantly, by using these limits, consumers are fully compensated for the harm suffered as a result of price-fixing. [ABSTRACT FROM AUTHOR]

‘Collateral benefits’ received by accident victims also seeking damages at common law pose problems for both policy makers and lawyers. This article examines these problems in the specific context of the work related benefits which a plaintiff may receive. For example, should sickness payments or disablement pensions be taken into account to reduce the damages payable by a tortfeasor? Litigation has produced a complex set of rules influenced by policies which pull in different directions. There is uncertainty about how the employment benefits should be viewed: are they to be deducted because they are akin to those publicly provided by the welfare state, or are they to be left out of account, as are monies payable under an insurance policy, because they are truly private rights, independently negotiated and separately paid for? Do the benefits merely duplicate tort by being paid for the same purposes as the damages, or do they offer compensation for some additional losses?The questions posed by collateral benefits lie at the heart of any compensation system, and constitute one of the keys to its future direction. This is because the inter-relationship of compensation schemes is crucial in understanding the extent and fairness of the provision made for those incapacitated and disabled in society. The Law Commission has recently issued a Consultation Paper on collateral benefits. Although this article looks only at benefits related to work, it covers the key area where the major decisions must be made and the policies formulated. [ABSTRACT FROM AUTHOR]

In several relatively recent decisions, the House of Lords and the Court of Appeal have declared, relying on a series of early 20th century admiralty cases, that the occurrence of supervening events is irrelevant to the determination of damages for negligent injury to property. The principle has been described as 'a firm sub-rule' that applies to cases of property damage but not to other categories of loss. This paper, conversely, contends that the proper and consistent position in law is that a court tasked with assessing damages for property injury should take into account the impact of relevant supervening events. It asserts that the more recent decisions of the courts have misconstrued the early precedents, confused facially similar but factually distinct categories of cases, and fashioned an exceptional sub-rule that is inconsistent with broader principles of the common law of damages. 'Losses in any event' are relevant to the measure of loss in cases of damaged property. It is therefore proposed that the presumed sub-rule be discarded and the relevance of subsequent events acknowledged. [ABSTRACT FROM AUTHOR]

The paper examines how present German law deals with non-pecuniary losses. The development in legislation and case law since the enactment of the German Civil Code of 1900 is reviewed. In particular, the impact of the reform of 2002 of the law of damages and the leading decisions on infringements of the personality right as well as the recent tendency to strengthen the preventive effect of the law of damages are discussed in depth. [ABSTRACT FROM AUTHOR]

This article critically reviews the European Commission's proposed directive on future rules concerning actions for damages for competition law infringements under national law. It is argued that the proposal underestimates the importance of loss of profits induced by increased prices and does little to ensure that such effects will receive a treatment equal to that of price effects in damages claims. The article suggests that the importance of such effects could have been emphasized by introducing a rebuttable presumption on lucrum cessans based on pass-on considerations—paralleling the presumption on overcharge. Furthermore, the decision to leave questions of causality to national tort laws is criticized, as a harmonized regulation of claims based on the merits of the evidence presented would have been a superior tool, in line with a more economic approach and better suited for achieving the goal of compensation for any victim due to its intrinsic flexibility. Finally, the notion that legally relevant damage only accrues within a vertical value chain is challenged. [ABSTRACT FROM PUBLISHER]

This paper examines the impact on agricultural development of the introduction of barbed wire fencing to the American Plains in the late nineteenth century. Without a fence, farmers risked uncompensated damage by others' livestock. From 1880 to 1900, the introduction and near-universal adoption of barbed wire greatly reduced the cost of fences, relative to the predominant wooden fences, especially in counties with the least woodland. Over that period, counties with the least woodland experienced substantial relative increases in settlement, land improvement, land values, and the productivity and production share of crops most in need of protection. This increase in agricultural development appears partly to reflect farmers' increased ability to protect their land from encroachment. States' inability to protect this full bundle of property rights on the frontier, beyond providing formal land titles, might have otherwise restricted agricultural development. [ABSTRACT FROM AUTHOR]

By constraining an individual's choice during a search, housing discrimination distorts sorting decisions away from true preferences and results in a ceteris paribus reduction in welfare. This study combines a large-scale field experiment with a residential sorting model to derive utility-theoretic measures of renter welfare loss associated with the constraints imposed by discrimination in the rental housing market. Results from experiments conducted in five cities show that key neighborhood amenities are associated with higher levels of discrimination. Counterfactual simulations based on the sorting model suggest that discrimination imposes damages equivalent to 4.4% and 3.5% of the annual incomes for African American and Hispanic/Latinx renters, respectively. Damages are increasing in income for African American renters, such that effects become stronger for economically mobile households. Renters of color must make substantial investments in additional search to mitigate the costs of these constraints. We find that a naive model ignoring discrimination constraints yields biased estimates of willingness to pay for key neighborhood amenities. [ABSTRACT FROM AUTHOR]

Shenzhen Jingu Meixiang Industrial Co., Ltd. v Hefei Wanfeng Seed Co., Ltd. [ABSTRACT FROM AUTHOR]

In their modern form, aggravated damages burst on the legal scene in 1964. Their nature is contestable. Commentators tend to argue that they compensate for losses associated with the plaintiff's dignity. This paper argues that this view is both too narrow and too wide: too narrow because aggravated damages have not been limited to losses that can be so described ; too wide because the view is based on the assumption that aggravated damages are an independent head of damage. Properly understood, aggravated damages are relevant in the assessment of damages, compensating for recoverable tangible or intangible losses that are incapable of objective monetary assessment and that have been increased by reason of the nature and circumstances of the defendant's wrong. Their justification is the need to avoid the risk of under-compensation in such cases. [ABSTRACT FROM AUTHOR]

Monetary damages is the ordinary remedy in investor-state dispute settlement (ISDS). As such, arbitral practice relating to damages has direct, practical relevance for states and investors. The size of damages awards is also amongst the core critiques of ISDS. It is somewhat surprising, then, that the issue of damages has not figured prominently in discussions on reform of investment treaties and the ISDS mechanism, including those currently underway in Working Group III of the United Nations Commission on International Trade Law (UNCITRAL). In this context, this article makes three contributions. First, it provides an overview of empirical trends in damages in ISDS. Secondly, it considers the extent to which tribunals' approaches to damages raise the sorts of concerns with ISDS identified by UNCITRAL Working Group III, focusing specifically on concerns of correctness, consistency, legal and expert costs, and independence and impartiality. Thirdly, it identifies a range of possible procedural and substantive reform options that might alleviate these concerns. [ABSTRACT FROM AUTHOR]

Private damage claims against cartels may have negative effects on leniency: whereas whistleblowers obtain full immunity regarding the public cartel fines, they have no or only restricted protection against private third-party damage claims. This may stabilize cartels. We run an experiment to study this issue. Firms choose whether to join a cartel, may apply for leniency afterward, and then potentially face private damages. We find that the implementation of private damage claims reduces cartel formation but makes cartels indeed more stable. The negative effect of damages is avoided in a novel setting where the whistleblower is also protected from damages (JEL C90, L41, L44). [ABSTRACT FROM AUTHOR]

This article examines the formation of International Environmental Agreements (IEAs). The economic literature focuses on scenarios where countries are weakly sensitive to environmental damages (constant or linear marginal damages) and finds that stable coalitions are small when countries choose their emission strategies simultaneously and the marginal benefit function is linear. Motivated by empirical evidence, our analysis addresses cases where countries are highly sensitive to environmental damages. In this context, we find equilibrium behaviors that reverse conventional wisdom. For instance, large coalitions including the grand coalition can be supported as an equilibrium outcome when the sensitivity of countries to environmental conditions its high. Our findings provide an additional explanation for large-scale IEAs such as the Montreal Protocol. [ABSTRACT FROM AUTHOR]

To encourage private negotiations for damages in antitrust cases some jurisdictions subtract a fraction of the redress from the fine. We analyze the effectiveness of this policy. Such a rebate does not encourage settlement negotiations that would otherwise not occur. If, however, the parties settle without the rebate, the introduction of the reduction may increase the settlement amount. Yet, deterrence for those wrongdoers who are actually fined always goes down. Under a leniency program, the rebate does not affect the leniency applicant: she does not pay a fine that can be reduced. The overall effect of a fine reduction on deterrence is therefore negative. [ABSTRACT FROM AUTHOR]

We examine the efficiency of the standard breach remedy expectation damages in a setting where the buyer invests cooperatively and the seller invests both cooperatively and selfishly. Contracts may specify a required quality level and an upper bound to the seller's coordination costs. We find that it is optimal to write an augmented Cadillac contract in which quality is stipulated such that it cannot be met with positive probability together with a very low price. Thus, the seller becomes a residual claimant and the coordination-cost threshold can be used to balance the incentives of the buyer. [ABSTRACT FROM AUTHOR]

This article contributes to the ongoing debate on the quantification of the damages caused by anticompetitive conduct by applying a number of empirical methods to the pasta cartel in Italy, which was discovered by the Autorità Garante della Concorrenza e del Mercato (Italian Competition Authority, or AGCM) in 2007. These methods include the dummy variable approach, the dynamic treatment effects (DTE) method, and the so-called straight-line methods. The key results show that both the dummy variable and the DTE methods perform better than the straight-line methods. Moreover, the last should not be used when the underlying cost and demand drivers over the cartel period are substantially different from those prevailing before or after. The dummy variable approach and the DTE method provide very similar estimates of the cartel overcharge, though there is no reason to expect that this would always be the case. Finally, this article contributes to the ongoing debate on “optimal fines” and on the societal benefits of having a proper antitrust enforcement by showing that that the fines levied by the AGCM in this particular case were below “optimal” levels, and that the benefits from this intervention of the AGCM are roughly seven times its annual budget. [ABSTRACT FROM AUTHOR]

Deliberando saepe perit occasio’ : ‘the opportunity is often lost while we deliberate on it’.Observers sometimes resort to Publilius Syrus’ maxim to characterize the process of legislating on an EU legal framework for private enforcement of competition rules. After only a decade of deliberating, the European Commission submitted to the Council and the European Parliament its proposal for a directive on actions for damages in June 2013 - a date that is rather close to the end of the current European Parliament's term. [ABSTRACT FROM PUBLISHER]

Previous literature focused on narrowly defined treatments reached conflicting conclusions about the association between tort reforms and treatment intensity. Using county-level panel data, I evaluate the impact of noneconomic damages caps on broadly defined measures of health care delivery in hospitals. Caps adoption leads to a 3.5% decrease in surgeries, a 2.5% decrease in admissions, a 4.5% decrease in outpatient visits but has no significant effect on emergency care. These results are not driven by spillovers across state borders or by improvements in health and are accompanied by an increase in mortality from complications of medical and surgical care. [ABSTRACT FROM PUBLISHER]

When people face risk of death, they overinvest in risk reduction: first, they discount their risk-reduction costs by the probability of death; second, they consider the consumption of their wealth as a benefit from risk reduction. From a social perspective, people's wealth remains after their death. Therefore, discounting costs by the probability of death and taking into account the benefit of wealth consumption are socially inefficient. Moreover, even for the individual under risk of death, the investment in risk reduction is excessive. We discuss market mechanisms that could correct the inefficiencies; we argue that “willingness to pay” as a criterion for valuing life should radically change; and we show how the results of the economic analysis of tort law should be modified. [ABSTRACT FROM AUTHOR]

Background: Fine particulate matter (PM2.5) is a ubiquitous air pollutant, and it has been reported to be closely associated with lung inflammatory injury. In this study, the potential molecular mechanisms underlying PM2.5-induced cellular inflammation in human bronchial epithelial (BEAS-2B) cells were investigated. Materials and methods: Ambient PM2.5 particulates from Suzhou, China, were collected and re-suspended in ultrapure water. Cellular damages, characterized by oxidative stress, mitochondrial injury, and inflammatory cytokine production, were determined in 24 h PM2.5-treated BEAS-2B cells with or without 3-methyladenine (3-MA; autophagy inhibitor) pretreatment. Biomarkers related to oxidative damage, inflammatory injury and autophagy signaling pathways were also measured. Results: Uptake of PM2.5 in BEAS-2B cells induced cellular oxidative damage, mitochondrial injury, and inflammatory responses as indicated by a significant decrease in GSH/GSSG ratio, increased MDA content, dilated mitochondria with loss and rupture of crista, and production of inflammatory cytokines. Activation of Nrf-2/TXNIP-mediated NF-κB and Bnip3L/NIX-dependent mitophagy signaling pathways, as well as accumulation of autophagosomes and autolysosomes, were also observed. A 6 h pretreatment of 3-MA increased PM2.5-induced oxidative damage and cellular inflammation as indicated by increasing protein levels of HO-1, TXNIP, Bnip3L/NIX and IL-8 gene expression. Conclusions: PM2.5 induced cellular inflammatory injury by oxidative stress, mitochondrial dysfunction, and mitophagy initiation. Although induction of Bnip3L/NIX-mediated mitophagy in BEAS-2B cells appeared to confer protection in response to PM2.5, dysfunction of autophagic flux may be a critical contributor to defective mitophagy and cellular inflammatory response. [ABSTRACT FROM AUTHOR]

The purpose of the article is twofold. At a more general level, it aims to illustrate how the changes in intellectual property litigation adopted in Italy since 2005, particularly in connection with the setting of damages suffered by rights holders and the recovery of profits obtained by infringers, have been remarkably successful in increasing the overall efficacy of the protection system. At the same time, it focuses on one particular feature of the system, the newly introduced recovery of profits from innocent infringers, arguing that the adoption of this second limb of recovery is questionable from a policy viewpoint and introduces a number of difficulties in the enforcement process, several of which transpire to be intractable. Some other aspects of the actions, both with regard to damages and recovery of profits, adopted in the recent Italian legislation are examined against the background of the EU enforcement directive and of TRIPS, with a view to highlighting both the strong points and the incongruities of the rules. [ABSTRACT FROM AUTHOR]

An introduction is presented in which the editor discusses various reports within the issue on topics including non-pecuniary damages in contract and torts.

Extensive literature has shown that assignment of liability for a single harm to multiple injurers undermines incentives for optimal care. As each potential injurer anticipates bearing only a fraction of the harm, incentives to take precautions are often diluted. The dilution-of-liability concern has led theorists to propose sophisticated apportionment rules to restore optimal incentives. This article demonstrates, however, that shared liability also gives rise to the converse risk, namely, it induces injurers—whether subject to negligence or strict liability—to invest excessively in care. Furthermore, unlike its extensively analyzed counterpart, the risk of excessive care arises under any apportionment regime. While apportionment rules cannot eliminate the problem of excessive care, we suggest other means by which the problem can be addressed (JEL D62, D86, K13). [ABSTRACT FROM AUTHOR]

The multiplier approach to the calculation of damages which is described by Kidner and Richards[2] allows for the award for the loss of future income to be calculated as a multiple of the annual loss of earnings or dependancy. The multiple or "multiplier" is a judicial "rule of thumb" which submerges into a single parameter, (a) the expected duration of the working life left to the victim had he not been killed, (b) a suitable interest rate for " ... loss of earnings ... because the plaintiff will be receiving a lump sum down instead of successive weekly payments",[3] and (c) contingencies such as the prospects of future promotion, unemployment, sickness, remarriage of the widow (until recent reform) but not inflation. While Kidner and Richards criticise the multiplier approach for not taking into account factors such as inflation and actuarial evidence, precisely how the judge calculates the multipler remains his own secret. Since the multiplier approach substitutes a lump sum award for the money stream which might have accrued had the accident not occurred, it has obvious parallels with the capitalising procedures used by economists for investment appraisal. This parallel is used by Kidner and Richards when they consider the net present value criterion as an alternative and more scientific procedure for calculating court awards and illustrated with reference to a particular court case. This procedure involves selection of an appropriate interest rate and adjustment of the displaced income stream in the light of uncertainties or contingencies to which it may be subject. What we do in this paper is to calculate the internal rate of return implied by the choice of multiplier with reference to a sample of court awards.[4] These rates of return will reflect the combined effect of contingencies and the interest rate implied by the multiplier. To avoid possible confusion between the legal and economic approaches and terminology we shall use the term "implied r... [ABSTRACT FROM AUTHOR]

We investigate the interaction between the law's prohibition of recovery for unrequested benefits (but provision of damages for unrequested harms) imposed on third parties, and parties' incentives at the ex ante stage to acquire information about the harms or benefits of the activities they consider engaging in. We analyze the impact of these interactions on the efficiency ranking of two prevalent damages regimes: ex ante damages and ex post damages. We show that ex post damages induce information acquisition, thus potentially leading to more efficient decision-making. However, under an ex post regime, the existence of, and the prohibition of recovery for, unrequested benefits distort parties' incentives to acquire information and engage in the activity. Taking into account the tradeoff between these effects, we show that the relative efficiency of ex ante versus ex post damages depends on the size of potential unrequested benefits, and how the ex ante damages are calculated by courts, specifically, whether they are truncated or not. The larger the potential unrequested benefits, the more likely nontruncated ex ante damages outperform ex post damages. In contrast, ex post damages are always more efficient than truncated ex ante damages. [ABSTRACT FROM AUTHOR]

A damages rule is called compensatory if it requires compensation of each party who complied with the due care standard for harm caused by deficient precaution of the other party. The two main contributions of this article are as follows. First, we show that any Nash equilibrium of the game induced by a compensatory damages rule enhances welfare compared to the welfare that would have been attained if both parties had complied. This is true irrespective of whether the due care standards are set at their socially optimal level. Second, we provide a general result for evaluating the conditions under which courts have sufficient information to implement compensatory damages rules. This is the case when the available evidence allows courts to determine whether the injurer's precaution choice was the but-for cause of any harm to the victim. The exact levels of precaution and harm need not be observable (JEL K13). [ABSTRACT FROM AUTHOR]

Suppose a defendant owed the claimant a duty that the defendant could have discharged by taking any one of several different measures. The defendant took none, violating the duty. When assessing damages, how should the court determine which measure the defendant would have taken had the defendant not committed the wrong? I explain how this peculiar counterfactual inquiry should proceed. I examine the role of counterfactual analysis in the assessment of damages generally, before exploring the special difficulty it raises in cases involving disjunctive duties (duties capable of being variously satisfied). By virtue of certain doctrinal assumptions, it is a difficulty that courts have mostly avoided. I argue that these assumptions are unjustifiable and should be jettisoned. The problem of how to determine the counterfactual, lawful conduct of a defendant who violated a disjunctive duty cannot be avoided. I propose a principled solution to the problem that can be straightforwardly applied by judges. [ABSTRACT FROM AUTHOR]

This study investigates the optimal nature of lawmaking under uncertainty. I focus on a case in which a harmful activity will be subjected to some regulatory measures (a standard, exposure to liability, or a corrective tax). The benefits and costs of precaution are ex ante uncertain, and this places a risk burden on both injurers and victims. The optimal policy should, at the same time, strike a balance between benefits and costs of the measures, and attenuate the ex ante risk. Whether measures should be made stronger or softer depends on the size and the sign of the shocks affecting the parties (positive or negative) and their disposition towards risk. With corrective taxes, it also depends on the elasticity of precautions with respect to the tax rate. [ABSTRACT FROM AUTHOR]

Civil liability for a lost chance occurs when a tortious action changes the probabilities of the outcomes that can be obtained by the victim. In such situations, the most commonly referenced rule of quantification is that of proportional damages. Based on this rule, the literature has proposed several formulae for quantifying damages. However, these formulae have limited applicability. For instance, they are inappropriate when the victim's chance has more than two possible outcomes or when the victim can make a choice which would influence her outcomes. Also, the formulae have seldom been derived from legal principles, which makes it hard to choose among them when they disagree. Instead of discussing specific formulae, we propose a principled approach to quantifying damages in lost chances. We present several qualitative legal questions regarding how to quantify damages and show that the answers lead to precise and general rules for damage quantification. These rules generalize the formulae that were previously proposed. Furthermore, our approach separates legal considerations from the quantitative issues involved in damage quantification. [ABSTRACT FROM AUTHOR]

In recent years, the historical abuse perpetrated against children in residential child-welfare and protection services has increasingly been perceived as a public concern. In the context of this European and global development, several formal inquiries commissioned by authorities into the alleged historical abuse of children in social work services were perceived as a political priority to repair human injustices, and were set up as an attempt to come to terms with the failure of social welfare policies and services in the past. The number of official public apologies has continued to increase since the turn of the century. In this article, we radically question the normative truth logic that is at stake in these politics of apology as a way to give recognition on both an individual and a collective level, and argue that social work needs to critically deal with its own confusing history, with which it is interwoven, to be able to clarify what contemporary social work represents. [ABSTRACT FROM AUTHOR]

This article offers an analysis of negligence law in an environment with asymmetric information and costly signaling. We consider three possible variations of the negligence doctrine, based on its two elements—the standard of care and damages. We find that accounting for signaling costs affects the social desirability of the negligence rule. In a nontrivial number of cases, the social costs are lowest under the variation of the negligence regime in which the standard of care is the same for all types of victims but damages vary according to the victim's type. This analysis provides an efficiency-based justification for the use of negligence doctrine in bodily injuries and wrongful death cases, a practice that has been considered one of the greatest "misalignment puzzles" in negligence law. [ABSTRACT FROM AUTHOR]

This article starts the task of expanding the concept of climate change litigation. It argues that a preoccupation with high-profile cases, can divert attention from other important issues litigated within the broader climate change context. The article highlights four key and interrelated considerations that would inform a future conception of climate change litigation. First, climate litigation occurs across scales, and smaller cases at lower levels of governance are as important as more high-profile cases, for myriad reasons. Second, climate change litigation can engage all elements of a good climate response, not just emissions abatement. Third, the extent of private law's potential contribution tends to be overlooked. Fourth, ignoring 'invisible' climate change cases—or invisible issues within those cases—can result in perilous consequences for climate change policy. Illuminating the implications of all climate cases across scales is fundamental for coherent policy. In addition, this broader conception can support strategic choices. [ABSTRACT FROM AUTHOR]

This article reports and discusses the results of an empirical study of punitive damages. It examines 146 claims that were decided in all parts of the UK (save for Scotland, which does not recognise punitive damages) by first instance courts in the first 16 years of the twenty-first century. The study is the first of its kind to be conducted in the UK. In the morass of data, important evidence is uncovered regarding punitive damages. Our most significant findings include (1) that punitive damages (when claimed) are awarded reasonably regularly, (2) that the average award of punitive damages is relatively modest, (3) that there is considerable uniformity in terms of the size of punitive damages awards, and (4) that actions for defamation are unlikely to constitute an important source of punitive damages awards. These (and other) findings cast considerable doubt upon widely held views regarding punitive damages. [ABSTRACT FROM AUTHOR]

This article investigates the implications of uncertainty aversion on optimal liability law. Of special interest is the case in which the causal link between conduct and harm is not known with certainty, as is frequently the case with toxic torts. Under negligence, uncertainty aversion calls for a higher standard of care if, and only if, the safest prevention measures are also the most reliable ones (i.e., they reduce the uncertainty perceived by the victim). Strict liability dominates negligence when the injurer has lower degrees of uncertainty aversion than the victim and can formulate more precise estimates of the probability of harm. When harm is dispersed on a very large number of victims, however, negligence dominates independently of their degree of uncertainty aversion. [ABSTRACT FROM AUTHOR]

The article focuses on whether the expropriation risk is to be taken into account for the assessment of damages. Topics discussed include International Centre for the Settlement of Investment Disputes (ICSID) decision in Venezuela Holdings v Venezuela court case; analysis of concept of country risk which encompasses expropriation risk; and relevant principles relating to the assessment of compensation and damages.

In this article, I analyze and support the Korean Supreme Court's acceptance of pass-on theory in the recent flour price-fixing case decided in 2012. Since Korea belongs to the civil law system that aims at making actual damage compensation by private litigation, I agree with the court that a defendant should not be required to pay more than the actual damage suffered by plaintiffs. The Supreme Court stated that a defendant should establish a causal link between the alleged overcharge and any recovery made to plaintiffs through pass-on, but concluded that the required causal link was not established in the present flour price-fixing case. However, a notable feature of the judgment was that the Supreme Court allowed a reduction of the final damages awarded anyway, not on the basis of pass-on theory, but based on the notion of fairness. I support the Korean Supreme Court's decision to allow the pass-on defense to run, with burden of proof to establish it resting on the defendant. However, I suggest that the Korean courts should not calculate a reduction of damages according to the notion of fairness when a defendant cannot establish the pass-on causal link. It is time for the Korean courts to rely on a more concrete way of calculating damages than selecting some arbitrary numbers based on the notion of fairness. [ABSTRACT FROM AUTHOR]

This article examines the current approach to the quantification of damages for non-pecuniary loss, and the issues that have arisen therein. Notwithstanding the acceptance by English contract law that certain forms of non-pecuniary loss are compensable, substantial difficulties still arise when attempting to quantify such loss. In particular, the courts have struggled to justify damages in cases that require some measurement of the value of the 'subjective' loss to the claimant. One method of measurement is the concept of consumer surplus, as demonstrated in the oft-cited cases of Ruxley v Forsyth and Farley v Skinner. This article discusses various inconsistencies with the courts' application of the term consumer surplus, and posits a solution for quantification of loss in such situations, using tools already available to economists (viz equivalent and compensatory valuation deployed in the course of cost-benefit analyses). In so doing, the article seeks to promote the utility of the consumer surplus as a remedial tool, and advance the underlying goals of contract law. [ABSTRACT FROM AUTHOR]

The question of whether a tortfeasor should compensate non-pecuniary losses is not answered unambiguously in Law and Economics. On the one hand, to provide tortfeasors incentives for deterrence, damages should fully reflect the extent of immaterial loss. On the other hand, it is argued that to achieve optimal loss spreading, the victim should not receive damages for non-pecuniary losses if he would not self-insure against such losses. In our view, however, such insurance decisions cannot provide guidance on whether non-pecuniary losses should be included in tort damages nor on how to assess them. We argue that ‘ex ante determined damages’, which are based on the resources a victim would have been willing to spend to avoid the non-pecuniary loss, form the correct basis for pain and suffering damages. In our view the concept of Quality Adjusted Life Years (QALYs) from the field of health economics can be used as a measure to assess the ex ante determined damages for non-fatal injuries. QALYs can reflect the impact of different types of injuries on the quality of life of the victim. By monetizing QALYs, this impact is expressed in monetary terms, which provides a non-arbitrary basis for pain and suffering damages. As example, we compare pain and suffering damages in several European countries with the amounts that would result from the QALY-approach for various personal injuries. We show that the amounts that are currently awarded are too low, both from a (legal) compensation as well as from an (economic) incentives point of view. [ABSTRACT FROM AUTHOR]

According to the European Commission, the vast majority of large antitrust damages actions are currently being brought in three Member States—the Netherlands, Germany, and the United Kingdom.These actions are mostly follow-on damages claims and almost exclusively relate to cartel infringements.They are still in the early stages and the judgments that have been issued thus far tend to relate to procedural questions like jurisdiction, a stay of the legal proceedings and document exhibition. [ABSTRACT FROM AUTHOR]

This article develops two points. First, insurance against the risk of legal change is largely unavailable, primarily because of the correlated nature of the losses that legal change generates. Second, given the absence of insurance against legal change, it is generally desirable for legal change to be attenuated. Specifically, in a model of uncertainty about two different types of legal change—in regulatory standards and in payments for harm caused—it is demonstrated that the optimal new regulatory standard is less than the conventionally efficient standard and that the optimal new payment for harm is less than the harm. [ABSTRACT FROM AUTHOR]

This article offers a normative critique of the view, proposed by George Fletcher, that holding one person liable to compensate another for an injury she has caused is justified if it results from a nonreciprocal risk imposition. I briefly attempt to ascertain the moral underpinning of nonreciprocity, considering the concepts of fairness, standing and causation. Concluding that there is no compelling moral rationale for nonreciprocity, I use case analysis to show that two competing considerations—the extent to which either party could have avoided the risk and the distribution of benefits created by the risky activity—override nonreciprocity. I conclude that we ought to reject the nonreciprocity principle as a moral basis of liability to compensate. The results of the critique are not purely negative, however. In outlining and assessing the relevance of avoidability and benefit distributions, I make some progress towards a new account of liability to compensate for unintentional harm. [ABSTRACT FROM PUBLISHER]

This article examines a consequence of Art 13 of Directive 2004/48 on the enforcement of intellectual property rights.The authors consider the extent to which at least in the UK,the remedy of damages has effectively usurped the role & function of the free standing remedy of account of profits.It is argued that Art 13 has eliminated the need for electing between damages and account and a cascade is proposed, by which courts might approach the award of damages under Art 13. [ABSTRACT FROM PUBLISHER]

We analyze the key determinants of umbrella effects, which arise when a cartel causes a price increase or quantity reduction that diverts demand to substitute products. Umbrella effects arise irrespective of whether non-cartelists act as price takers (“competitive fringe”) or respond strategically to the increased demand. Sizable umbrella effects can also arise when non-cartelists are outside the relevant market, as defined by the hypothetical monopolist test (HMT), provided that the cartel's price increase is substantial. Further, a shift of demand to non-cartelists can also occur when firms that purchase products or inputs from the cartelists pass on the price increase to their rivals that purchase from non-cartelists, who may benefit from higher demand. To identify the actual damage of umbrella effects, it is thus key to take into account the overall adjustments among cartel members and outsiders, as well as among their respective, potentially competing purchasers. We also discuss how future analysis of the endogenous formation of cartels with partial market coverage should inform theories of the determinants of umbrella effects. [ABSTRACT FROM AUTHOR]

This article seeks to cover the principles and practice of courts in Tanzania when it comes to assessment of damages in trademark infringement cases. The article begins by defining trademarks, damages as well as infringement. It proceeds to cover briefly the overview of trademark law in Tanzania. This was purposely done in order to put things in perspectives.The article further covers the various types of remedies available to the rights holder upon infringement of trademarks besides damages which is the core focus of this article. These damages include injunction which is the principal remedy that one can seek in order to prevent the other party from continuing to use the infringing mark, account of profit in which case the rights holder rather than seeking actual damages, seek the profits made by the other party as a result of its use of the infringing mark, withdrawal of goods bearing the infringing trademark from the market and disposal outside the channels of commerce in such a manner as to avoid any harm to the rights holder or, unless this would be contrary to existing constitutional requirements, destroyed. There is also punitive damages which is payable where it is proved in the balance of probabilities that the infringement was done maliciously, wilfully, fraudulently or deliberately. [ABSTRACT FROM PUBLISHER]