Law Commons^™

Addressing The Class Claim Conundrum With Online Dispute Resolution, Amy J. Schmitz

Faculty Publications

Consumers with similar claims in the United States (U.S.) often join forces to launch representative, or "class", actions. This allows them to obtain remedies with little cost and effort and serves a "private attorney general" function by bringing light to purchase problems that public enforcement offices may not have the resources to address. This is especially important for lower dollar claims that are too costly for each consumer to pursue individually.

Nonetheless, some have criticized class actions in the U.S. for forcing settlements and padding the pockets of lawyers, while leaving consumers with minimal pay outs. At the same time, …

Concepts, Not Nomenclature: Universal Injunctions, Declaratory Judgments, Opinions And Precedent, Howard Wasserman

Faculty Publications

Battle lines are drawn on the permissibility and validity of injunctions in federal constitutional litigation purporting to halt government enforcement of a challenged law against all possible targets of that law and to protect all rights holders against enforcement. Courts, members of the Supreme Court, and legal scholars are divided — some supporting and others rejecting them as impermissible.; I have staked my position in the latter camp.

From that starting point, this paper considers three subsidiary issues: 1) the proper label for these injunctions, arguing that “universal” or “non-particularized” is a more accurate term than the prevailing “nationwide”; 2) …

Precedent, Non-Universal Injunctions, And Judicial Departmentalism: A Model Of Constitutional Adjudication, Howard Wasserman

Faculty Publications

This Article proposes a model of constitutional adjudication that offers a deeper, richer, and more accurate vision than the simple “courts strike down unconstitutional laws” narrative that pervades legal, popular, and political discourse around constitutional litigation. The model rests on five principles:

1) an actionable constitutional violation arises from the actual or threatened enforcement of an invalid law, not the existence of the law itself;

2) the remedy when a law is constitutionally invalid is for the court to halt enforcement;

3) remedies must be particularized to the parties to a case and courts should not issue “universal” or “nationwide” …

Liability For Ai Decision-Making: Some Legal And Ethical Considerations, Iria Giuffrida

Faculty Publications

No abstract provided.

Truth Seeking: The Lenahan Case And The Search For A Human Rights Remedy, Margaret B. Drew

Faculty Publications

Part I of this essay addresses the role of determining truth as part of human rights remedies. Truth is essential so that all involved may provide appropriate remedies to those harmed, as well as to open a gateway to whatever level of healing and change is possible under the circumstances. Part II discusses the procedural history of Town of Castle Rock v. Gonzales and explores the comparative findings and goals of the U.S. legal system within the human rights framework. The U.S. and IACHR Gonzales-Lenahan cases are used as comparative exemplars. The application of truth seeking principles to the Lenahan …

“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman

Faculty Publications

Federal district courts are routinely issuing broad injunctions prohibiting the federal government from enforcing constitutionally invalid laws, regulations, and policies on immigration and immigration-adjacent issues. Styled “nationwide injunctions,” they prohibit enforcement of the challenges laws not only against the named plaintiffs, but against all people and entities everywhere.

The first problem with these injunctions is one of nomenclature. “Nationwide” suggests something about the “where” of the injunction, the geographic scope in which it protects. The better term is “universal injunction,” which captures the real controversy over the “who” of the injunction, as courts purport to protect the universe of all …

The New Handshake: Where We Are Now, Amy J. Schmitz, Colin Rule

Faculty Publications

The internet has empowered consumers in new and exciting ways. It has opened more efficient avenues for consumers to buy just about anything. Want proof? Just pull out your smartphone, swipe your finger across the screen a few times, and presto – your collector’s edition Notorious RBG bobblehead is on its way from China. Unfortunately, however, the internet has not yet delivered on its promise to improve consumer protection.

Remedy Realities In Business-To-Consumer Contracting, Amy J. Schmitz

Faculty Publications

Professor Jean Braucher greatly contributed to the exploration of consumer and contract law by questioning how the law operates in the real world and highlighting the importance of “law in action.” In recognition of that contribution, this Article focuses on law in action with respect to consumers’ quest to obtain remedies regarding their business-to-consumers (“B2C”) contracts. Currently, consumers often have no practical recourse with respect to B2C purchase problems due to the complexity, cost, and inconvenience of the processes for obtaining remedies. Accordingly, stated legal rights become meaningless for individuals living in the real world. This Article, therefore, explores access …

Introducing The 'New Handshake' To Expand Remedies And Revive Responsibility In Ecommerce, Amy J. Schmitz

Faculty Publications

There was a time when individuals would meet in person to make purchases and do deals. They would discuss the terms, assess the trustworthiness and character of their contracting partners, and conclude the deal with a handshake. The handshake helped ensure the enforcement of the deal without need for the rule of law or legal power. That handshake was one’s bond — it was a personal trust mark. With the emergence of eCommerce, however, that handshake has nearly disappeared along with the sense of responsibility it inspired. Accordingly, this article discusses how this has impacted consumers’ access to remedies regarding …

A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele

Faculty Publications

In spring 2015, the U.S. Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v. Kwai Fun Wong and U.S. v June, Conservator. The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinions, Wong and June come off as straightforward matters of statutory construction. But under the surface, the cases gave the Court a chance to wrestle with fundamental questions of statutory interpretation. The divide in Wong and June concerns the role of the courts vis-à-vis Congress — one …

Females On The Fringe: Considering Gender In Payday Lending Policy, Amy J. Schmitz

Faculty Publications

Payday lending may provide a much-needed safety net for some consumers in need of quick cash for emergencies. However, data suggest that most payday loan borrowers become repeat users caught in a cycle of high-cost debt. Furthermore, empirical evidence indicates consistent overrepresentation of women, including many single mothers, among payday loan borrowers. This takes a toll not only on these women and their families, but also on society as a whole. Indeed, context matters in payday lending debates. It is thus time to think creatively and consider contextualized programs that aim to increase women’s and all consumers’ safe borrowing options, …

Sex Matters: Considering Gender In Consumer Contracts, Amy J. Schmitz

Faculty Publications

We hear about the so-called “War on Women” and persisting salary gaps between men and women in the popular media, but contracts scholars and policymakers rarely discuss gender. Instead, dominant voices in the contracts field often reflect classical and economics-driven theories built on assumptions of gender neutral and economically rational actors. Furthermore, many mistakenly assume that market competition and antidiscrimination legislation address any improper biases in contracting. This Article therefore aims to shed light on gender’s importance by distilling data from my own e-survey of Colorado consumers along with others’ research regarding gender differences in contract outcomes, interests and behaviors. …

Miranda And Its (More Rights-Protective) International Counterparts, Megan A. Fairlie

Faculty Publications

The goal of this article is to encourage the international legal community to revisit its unexamined acceptance of strategic communications. This can lead to a debate that, at a minimum, should prompt Court supporters — specifically civil society members — to think carefully before engaging in conduct that creates dangerous consequences for the ICC.

Benefits Of Integrated Programs Over Non-Integrated Programs, Rebecca Flanagan

Faculty Publications

I do see hybrid teaching as the ASP model of the future. It is not a method that will be adopted by all schools, and it will certainly take time, and analysis, to refine the model to fit the student and school culture. Success is always a work in progress, but can only be achieved once you step from your comfort zone and try a new method.

Clawbacks: Prospective Contract Measures In An Era Of Excessive Executive Compensation And Ponzi Schemes, Miriam A. Cherry, Jarrod Wong

Faculty Publications

(Excerpt)

Months after insurance giant American International Group (AIG) faltered and the federal government provided financial assistance to keep the company afloat, executive compensation and bonus practices at the company came under scrutiny. Taxpayers balked when evidence came to light that large bonuses were being paid to executives—the same executives, in certain instances, who had been responsible for AIG's losses. The disconnect between AIG's huge losses and the multi-million dollar bonus payments is a striking example of "pay without performance," a phenomenon that Professors Jesse Fried and Lucian Bebchuk documented in their book of the same name. Responding to public …

The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman

Faculty Publications

The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This Article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory …

Antitrust Remedies Revisited, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In the 115-year history of federal antitrust law, much has been written about substantive liability standards. Comparatively little has been written about antitrust remedies. This inattentiveness to remedy was underscored by the Microsoft case wherein the Antitrust Division, having successfully adjudicated Microsoft a monopolist, scrambled to fashion an appropriate remedy, first seeking to break up Microsoft and ultimately reversing itself and settling for a conduct decree. Putting aside the question of whether the relief in Microsoft was adequate, the fact is that the case law on equitable remedies in antitrust is sparse and dated, leaving critics to question whether …

Overoptimism And Overborrowing, Richard M. Hynes

Faculty Publications

No abstract provided.

Unwarranted Variations In The Quality Of Health Care: Can The Law Help Medicine Provide A Remedy/Remedies?, Philip G. Peters Jr., John E. Wennberg M.D.

Faculty Publications

This article reviews the essential findings of studies of variations in quality of care according to three categories of care: effective care, preference-sensitive care, and supply-sensitive care. It argues that malpractice liability and informed consent laws should be based on standards of practice that are appropriate to each category of care. In the case of effective care, the legal standard should be that virtually all of those in need should receive the treatment, whether or not it is currently customary to provide it. In the case of preference-sensitive care, the law should recognize the failure of the doctrine of informed …

Optimal Bankruptcy In A Non-Optimal World, Richard M. Hynes

Faculty Publications

Consumer bankruptcy insures individuals against misfortune. Like other forms of insurance, bankruptcy reduces an individual's incentive to guard against misfortune and provides her with an incentive to overstate her need for relief. The "first-best," or optimal, bankruptcy system, like the first-best tax or public assistance system, solves these moral hazards without any loss of efficiency. In bankruptcy, this first-best approach would deny relief to debtors responsible for their own distress and reduce the deserving debtors' obligations to an amount commensurate with their ability to pay. While the Bankruptcy Code tries (in part) to follow this first-best approach, such a utopian …

The Lessons Of Impeachment History, Michael J. Gerhardt

Faculty Publications

No abstract provided.

The Challenge Of Prosecuting Organized Crime In The United States: Procedural Issues, Paul Marcus

Faculty Publications

No abstract provided.

Privacy Rights And Remedies, Jonathan L. Entin

Faculty Publications

No abstract provided.

The Securities Law Enforcement Remedies Act Of 1989: Disenfranchising Shareholders In Order To Protect Them, Jayne W. Barnard

Faculty Publications

No abstract provided.

Prospective Remedies In Constitutional Adjudication, Doug R. Rendleman

Faculty Publications

No abstract provided.

The New Due Process: Rights And Remedies, Doug R. Rendleman

Faculty Publications

This article discusses the "new" due process. Perhaps new is a misnomer. Due process was not discovered recently. It has been around a long time protecting varying interests from arbitrary action. The discovery called the "new" due process is merely that procedural protections are not so limited as previously thought. This article will examine the interests encompassed by the new due process and the remedial apparatus now being developed to protect those interests.