Law Commons^™

Remedies: A Guide For The Perplexed, Doug Rendleman

Doug Rendleman

Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …

What Types Of Losses Are Recoverable Under Arkansas' Products Liability Law, Rodney A. Smolla

Rod Smolla

Not available.

The High Price Of Poverty: A Study Of How The Majority Of Current Court System Procedures For Collecting Court Costs And Fees, As Well As Fines, Have Failed To Adhere To Established Precedent And The Constitutional Guarantees They Advocate., Trevor J. Calligan

Trevor J Calligan

No abstract provided.

Closing The Door To Lost Earnings Under The National Childhood Vaccine Injury Act Of 1986, Aaron M. Levin

Aaron M Levin

After a wave of lawsuits against vaccine manufacturers hindered the profitability and production of life-saving vaccines, Congress enacted The National Childhood Vaccine Injury Act of 1986. The Act offers an incentive for individuals to get vaccinated in order to mitigate the population’s exposure to disease, while encouraging the continued production of these serums by pharmaceutical companies. Although imperfect, the Vaccine Act fosters promise in filtering out frivolous claims and provides a central route for due process to the individuals who suffer from a vaccine-related injury. By removing a potential state tort issue to the Federal Circuit, Congress created a reasonably …

An Approach To The Regulation Of Spanish Banking Foundations, Miguel Martínez

Miguel Martínez

The purpose of this paper is to analyze the legal framework governing banking foundations as they have been regulated by Spanish Act 26/2013, of December 27th, on savings banks and banking foundations. Title 2 of this regulation addresses a construct that is groundbreaking for the Spanish legal system, still of paramount importance for the entire financial system insofar as these foundations become the leading players behind certain banking institutions given the high interest that foundations hold in the share capital of such institutions.

A Paradigm For Sexual Harassment: Toward The Optimal Level Of Loss, Marie T. Reilly

Marie T. Reilly

This article proposes a paradigm that draws from the common-law rule of negligence. It defines actionable sexual conduct in the workplace in terms of the cost of precautionary conduct and the increased safety such precaution would have yielded. Like the rule of negligence, the proposed paradigm creates incentives for men and women to take steps to prevent sexual conduct loss to the point at which the cost of an additional increment of precaution is equal to the value of the reduction in risk of loss. This point is the optimal level of precaution. After this point, additional precaution might further …

Making Sense Of Successor Liability, Marie T. Reilly

Marie T. Reilly

A firm that buys assets from another firm ordinarily does not acquire liability to the seller's creditors simply by buying its assets. This ordinary rule is subject to important exceptions. The buyer's consent triggers an exception. If a buyer agrees to assume the seller's liability to third parties, it is for that reason liable. This article considers a more controversial exception - successor liability. When a court decides that an asset acquirer should be treated as a "successor" to the transferor, it is liable for the transferor's debts as though it were the transferor.

Contracts Of Individuals Who Are Incompetent Without Guardianship And The Interpretation Of Article 428 Of The Italian Civil Code: Is The Court Of Cassation Wrong?, Enrico Baffi

enrico baffi

This paper aims at demonstrating that excessive protection of incompetent people can produce unintended negative consequences. Both in the Italian system, which is examined here in depth, and in American common law, a contract can be annulled if there is bad faith of behalf of the party who is not incompetent. However, a party in bad faith could offer an incompetent person a contract that does not produce a prejudice and could, in fact, be beneficial for the incompetent party. If the contract can be annulled, and if the prejudice occasionally occurs, the incompetent party can request a contract annulment. …

Allowing Patients To Waive The Right To Sue For Medical Malpractice: A Response To Thaler And Sunstein, Tom Baker, Timothy D. Lytton

Timothy D. Lytton

This essay critically evaluates Richard Thaler and Cass Sunstein’s proposal to allow patients to prospectively waive their rights to bring a malpractice claim, presented in their recent, much acclaimed book, Nudge: Improving Decisions about Health, Wealth and Happiness. We show that the behavioral insights that undergird Nudge do not support the waiver proposal. In addition, we demonstrate that Thaler and Sunstein have not provided a persuasive cost-benefit justification for the proposal. Finally, we argue that their liberty-based defense of waivers rests on misleading analogies and polemical rhetoric that ignore the liberty and other interests served by patients’ tort law rights. …

Proposed Implementing Procedures For Restore Act Awards Under Nepa, Sara Mammarella

Sara Mammarella

On April 20, 2010, what has been described as “the worst oil spill in U.S. history,” the BP Deepwater Horizon oil spill, occurred off the Louisiana coast, affecting a five-state area in the Gulf region (Florida, Alabama, Louisiana, Mississippi, and Texas), dumping an estimated 4.9 billion barrels of oil into the Gulf of Mexico. In response, Congress enacted the federal RESTORE Act to set up a mechanism for compensating the victims of the oils spill and to Repair the environmental harm caused by the oil spill.

This article will examine the effectiveness of the regulatory scheme in place that was …

Submission To The Select Committee On The Recent Allegations Relating To Conditions And Circumstances At The Regional Processing Centre In Nauru, Azadeh Dastyari

Azadeh Dastyari

No abstract provided.

Vicarious Liability And Non-Delegable Duty In Common Law Actions Based On Institutional Child Abuse, Neil J. Foster

Neil J Foster

The paper discusses the options for holding institutions civilly liable for child sexual abuse. In particular it suggests that the law of non-delegable duty ought to be extended to intentional torts like battery.

Women Made Whole: How Tort Law Can Change The Lives Of Domestic Violence And Sexual Assault Victims, Sara L. Crewson

Sara L Crewson

Tort law and insurance companies are failing to provide female domestic violence victims with adequate access to civil courts, proper legal mechanisms with which to gain that access, and are far behind the times when compared to other gender-linked crimes like those of rape and sexual assault. The Restatement of Torts (Third) has classified domestic violence as an intentional tort, and most insurance policies will not provide coverage for harms that were committed intentionally. Certain homeowners' insurance policies won't provide coverage if a spouse tries to sue another spouse for harms committed, leaving vulnerable wives unable to seek compensation for …

Trends In The Efficacy Of Parental Alienation Allegations In Child Custody Cases And Their Implications For Tortious Action, Bruce L. Beverly

Bruce L. Beverly

As the second of a series, this paper attempts to further explore the phenomenon of parental alienation in domestic relations cases by exploring the often frustrating position that many courts take with regard to blatant and obvious violations of the fundamental rights of parents to raise and know their children. Ofttimes, where courts have found the most blatant interference and harmful manipulation by one parent of the other parent's formerly close relationship with a child, the court either forces a detrimentally aligned child into the custody of the wrongfully vilified parent, thereby harming possible the child and that injured parent, …

Compensation Forfeiture: Stacking Remedies Against Disloyal Agents And Employees, George P. Roach

George P Roach

Compensation Forfeiture:

Stacking Remedies Against Disloyal Agents and Employees

Abstract

Four cases against outlaw CEO’s who defrauded their companies are reviewed to show the major impact that compensation forfeiture contributes to the total package of remedies awarded. The dual goals of remedies for breach of fiduciary duty of compensation and deterrence result in multiple remedies, generally including a remedy at law to compensate and a remedy in equity to disgorge any benefit from the breach. For claims that the fiduciary or agent breached her duty of loyalty, a third remedy of compensation forfeiture can be added or ‘stacked’ on top …

New Philosophical Foundations Of Tort Law?, Avihay Dorfman

Avihay Dorfman

In this critical piece I take stock of current understandings of five basic distinctions in the theoretical study of tort law: First, a meta-theoretical distinction between the law’s self-presentation and a commitment to epiphenomenalism; second, between the formal and the substantive theory of the morality of tort law; third, between corrective and distributive justice; fourth, between ideal and non-ideal tort theory; and finally, between culpability and justice (or equality).

Cocktails On Campus: Are Libations A Liability?, Susan S. Bendlin

Susan S. Bendlin

ABSTRACT: By Susan S. Bendlin

An estimated 1,825 college students die each year from alcohol-related, unintentional injuries. Roughly 599,000 students between the ages of 18 and 24 are injured every year while under the influence of alcohol. Tales of intoxicated college students’ wild, disgusting, and often violent behavior have made the national news. Litigation over alcohol-related incidents on college campuses arises from various situations, including injuries that result from intoxicated students falling, injuries suffered during parties and hazing rituals involving alcohol, and injuries from other assaults that occur after alcohol has been consumed on campus.

At the outset, this Article …

Studying Is Dangerous? Possible Federal Remedies For Study Abroad Liability, Robert J. Aalberts, Chad G. Marzen, Darren A. Prum

Chad G. Marzen

Every year, thousands of U.S. students study abroad for academic credit. Study abroad programs have traditionally garnered strong congressional support, and proponents of the programs emphasize the educational, cultural, and diplomatic benefits from study abroad experiences.

Despite the many benefits of study abroad programs, risks are incurred overseas. In the past several years, a number of incidents have resulted in which students studying abroad have not only incurred physical harm, but in some instances have died while enrolled in a study abroad program. The current liability standards governing study abroad programs are murky. This article not only discusses the various …

The Personal Liability Of Insurance Claims Adjusters For Insurance Bad Faith, Chad G. Marzen

Chad G. Marzen

One of the currents of change sweeping through the insurance industry is the rise of insurance bad faith liability. There is an emerging legal question today as to whether the individual employee adjusters of insurance companies can be subject to bad faith liability.This article examines the question of whether employee-adjusters of insurance companies can and should be held liable for insurance bad faith liability. Early reported cases involving personal liability for bad faith generally held that insurance company employee adjusters were immune from bad faith claims as they were not in privity of contract with insureds. However, three significant decisions …

Is An Apartment A Nuisance?, Michael Lewyn

Michael E Lewyn

In an ongoing Texas lawsuit, some homeowners allege that a nearby apartment building will constitute a nuisance. This article asserts that courts should generally reject nuisance claims against multifamily housing, based on the public interest in favor of increased housing supply and infill development.

Tort As Democracy: Lessons From The Food Wars, Melissa D. Mortazavi

Melissa Mortazavi

The Transformation Of South African Private Law After Twenty Years Of Democracy, 14 Nw. J. Int’L Hum. Rts. (Forthcoming 2016)., Christopher J. Roederer

Christopher J. Roederer

In The Transformation of South African Private Law after Ten Years of Democracy, 37 Colum. Hum. Rts. L. Rev. 447 (2006), I evaluated the role of private law in consolidating South Africa’s constitutional democracy. There, I traced the negative effects of apartheid from public law to private law, and then to the law of delict, South Africa’s counterpart to tort law. I demonstrated that the law of delict failed to develop under apartheid and that the values animating the law of delict under apartheid were inconsistent with the values and aspirations of South Africa’s democratic transformation. By the end of …

The Neglected Tort — Breach Of Statutory Duty And Workplace Injuries Under The Model Work Health And Safety Law, Neil J. Foster, Ann E. Apps

Neil J Foster

The tort of ‘breach of statutory duty’ (BSD) operates at the intersection of private and public law by providing a civil remedy for those whose injuries were sustained as a consequence of a statutory breach. One of the areas where the tort has clear relevance is the area of work health and safety, with the courts almost invariably holding that the breach of a statute primarily designed to protect workers from injury will provide them with a civil remedy as well as having criminal law consequences. The tort continues to be recognised in this area at the highest judicial level …

Dualism And Doctrine, Alex Stein, Dov Fox

Alex Stein

What kinds of harm among those that tortfeasors inflict are worthy of compensation? Which forms of self-incriminating evidence are privileged against government compulsion? What sorts of facts constitute a criminal defendant’s intent? Existing doctrine pins the answer to all of these questions on whether the injury, facts, or evidence at stake are “mental” or “physical.” The assumption that operations of the mind are meaningfully distinct from those of the body animates fundamental rules in our law.

A tort victim cannot recover for mental harm on its own because the law presumes that he is able to unfeel any suffering arising …

Bubbles (Or, Some Reflections On The Basic Laws Of Human Relations), Donald J. Kochan

Donald J. Kochan

The Role Of The Profit Imperative In Risk Management, Christopher French

Christopher C. French