Law Commons^™

Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent, Doug Rendleman, Douglas Laycock

Doug Rendleman

Restitution may be a casualty in a collision with the constitutional law of standing. Article III is traditionally said to require an “injury in fact” for standing to be a plaintiff in federal court. Edwards, who alleges that First American paid a bribe or kickback in violation of the federal Real Estate Settlement Procedures Act, seeks to recover the statutory penalty. Defendant argues that even if it violated the Act, Edwards suffered no “injury in fact.” Our amicus brief in support of Edwards alerts the Supreme Court to the many restitutionary claims either for a wrongdoer’s profits or to set …

Rethinking Principals Of Comparative Fault In Light Of California's Proposition 51, James A. Gash

Pepperdine Law Review

No abstract provided.

Reimbursing Hazardous Waste Cleanup Costs Under Cercla: A Move Toward Re-Establishing A Faithful Application Of State Insurance Law, Gary M. Miller

Pepperdine Law Review

No abstract provided.

Natural Resource Damages Under Cercla: The Emerging Champion Of Environmental Enforcement , Patrick Thomas Michael Iii

Pepperdine Law Review

No abstract provided.

Civil Practice And Procedure, Andrew P. Sherrod

University of Richmond Law Review

This article surveys recent and significant developments in Virginia civil practice and procedure. Specifically, the article discusses selected opinions of the Supreme Court of Virginia from September 2011 through June 2012, addressing new or meaningful civil procedure topics; significant amendments to the Rules of the Supreme Court ofVirginia concerning procedural issues during the same period; and legislation enacted by the Virginia General Assembly during the 2012 session that relates to civil practice.

Is The United States V. Olin Decision Full Of Sound And Fury Signifying Nothing?: The Future Of Retroactive Liability Of The Comprehensive Environmental Response, Compensation, And Liability Act, Kevin J. Slattum

Pepperdine Law Review

No abstract provided.

Misapplication Of The Attorney Malpractice Paradigm To Litigation Services: "Suit Within A Suit" Shortcomings Compel Witness Immunity For Experts, Adam J. Myers Iii

Pepperdine Law Review

No abstract provided.

Selling Structured Settlements: The Uncertain Effect Of Anti-Assignment Clauses , Gregory Scott Crespi

Pepperdine Law Review

No abstract provided.

Blinded By A Bright Line: An Analysis Of The Fairfield Formula And Its Impact On Existing Laws And Legislative Procedure, Thomas A. Limehouse Jr.

South Carolina Law Review

No abstract provided.

The Limits Of Limiting Liability In The Battle Of The Forms: U.C.C. Section 2-207 And The "Material Alteration" Inquiry, Colin P. Marks

Pepperdine Law Review

No abstract provided.

Copyright And The Vagueness Doctrine, Bradley E. Abruzzi

University of Michigan Journal of Law Reform

The Constitution's void-for-vagueness doctrine is itself vaguely stated. The doctrine does little to describe at what point vague laws-other than those that are entirely standardless-become unconstitutionally vague. Rather than explore this territory, the Supreme Court has identified three collateral factors that affect its inclination to invalidate a law for vagueness: (1) whether the law burdens the exercise of constitutional rights, (2) whether the law is punitive in nature, and (3) whether the law overlays a defendant-protective scienter requirement. Measured against these factors, copyright law does not meet the vagueness doctrine's minimum requirement of fair notice to the public. Copyright, by …

Compensation For Accidental Personal Injury: What Nations Might Learn From Each Other, Stephen D. Sugarman

Pepperdine Law Review

No abstract provided.

Late Delivery--Measure Of Damages, Sidney Kwestel

Sidney Kwestel

No abstract provided.

Improving Patent Notice And Remedies: A Critique Of The Ftc's 2011 Report, Alan Devlin

Michigan Telecommunications & Technology Law Review

2011 was an eventful year for those interested in patent law. In March, the Federal Trade Commission ("FTC") released a report that urges the Patent and Trademark Office ("PTO") and courts to remedy perceived inadequacies underlying the U.S. patent system. The FTC observes that people of skill in the art routinely encounter difficulty in determining the meaning, and hence exclusive scope, of a patent's claims. Not only does this failure of notice stymie the efficient dispersion of technology throughout the economy, the FTC argues, but the judicial process can aggravate the problem by granting inappropriate remedies in patent-infringement cases. Then, …

Patent Attorney Malpractice: Case-Within-A-Case-Within-A-Case, Samuel Oddi

Akron Law Faculty Publications

As literary devices, a “story-within-a story” and a “play-within-a-play” have a long lineage. Shakespeare seems to have been particularly fond of these devices. The legal analog may be seen as the “case-within-a-case” (“trial-within-a-trial,” “suit-within-a-suit”) arising in legal malpractice cases. The case-within-a-case terminology seems to be the most commonly used and hence will be used herein. While it is clear that the “case” is the malpractice case, it is not so clear what the “case-within-” is, which is usually referred to as the “underlying case.” Often, it seems to be presumed that the underlying case is limited to litigation, which would …

Monetary Damages Under The Lanham Act: Eighth Circuit Holds Actual Confusion Is Not A Prerequisite, Roger W. Dyer Jr.

Missouri Law Review

This Note will examine the Lanham Act and the ways in which courts have interpreted it, particularly its provisions dealing with trademark infringement. This Note will then explain the concept of "actual confusion" and what has prompted courts to read the requirement into the Lanham Act with respect to establishing monetary awards. This Note also will provide an overview of the current split between circuits requiring proof of actual confusion and those allowing proof of "likelihood of confusion" to support an award of damages. Particular emphasis is placed on Eighth Circuit precedent. Finally, this Note will argue that the Eighth …

Patent Claim Apportionment, Patentee Injury And Sequential Invention, Amy L. Landers

Amy L Landers

Reasonable royalty compensation for patent infringement is the most popular form of recovery and becomes more so every year. This may be based on the unfortunate but accurate perception that patentees can win big using the overly malleable legal standards that now govern such awards. One of the most glaring shortcomings of the standard is that it permits an award of a reasonable royalty based on doctrine that has lost touch with its statutory purpose.

This article sets forth a theory of patentee injury to establish a causative link between the inventive contribution and the reasonable royalty award. After doing …

Walking A Tightrope: The Role Of Equitable Discretion In Quantum Determination In Investment Treaty Law, Silke N. Kumpf

Silke Noa Kumpf

My thesis analyzes the manifestation of equitable arbitrator discretion in quantum determination and its role as a tool to balance treaty-based investor rights with extrinsic but competing international and public law obligations of States. I examine, first, scholarly opinions on the subject, second, arbitral practice through a content analysis of all past awards published by the International Centre for the Settlement of Investment Disputes (ICSID), which held liable respondent State for expropriation and, third, the results of an online survey I conducted with ICSID arbitrators, the lawyers that plead before them and the scholars that write about the topic in …

Patent Attorney Malpractice: Case-Within-A-Case-Within-A-Case, Samuel Oddi

Samuel Oddi

As literary devices, a “story-within-a story” and a “play-within-a-play” have a long lineage. Shakespeare seems to have been particularly fond of these devices. The legal analog may be seen as the “case-within-a-case” (“trial-within-a-trial,” “suit-within-a-suit”) arising in legal malpractice cases. The case-within-a-case terminology seems to be the most commonly used and hence will be used herein. While it is clear that the “case” is the malpractice case, it is not so clear what the “case-within-” is, which is usually referred to as the “underlying case.” Often, it seems to be presumed that the underlying case is limited to litigation, which would …

Penalty Clauses And The Cisg, Jack Graves

Scholarly Works

Commercial agreements often provide for “fixed sums” payable upon a specified breach. Such agreements are generally enforced in civil law jurisdictions. In contrast, the common law distinguishes between “liquidated damages” and “penalty” clauses, enforcing the former, while invalidating the latter as a penalty. The UN Convention on Contracts for the International Sale of Goods (CISG) does not directly address the payment of “fixed sums” as damages, and the validity of “penalty” clauses has, traditionally, been relegated to otherwise applicable domestic national law under CISG Article 4. This traditional orthodoxy has recently been challenged—suggesting that the fate of a penalty clause …

Brief Of Professors Of Law As Amici Curiae In Support Of Appellants, Neil Vidmar, David Zevan

Faculty Scholarship

No abstract provided.

Aggregate Litigation Goes Public: Representative Suits By State Attorneys General, Margaret H. Lemos

Faculty Scholarship

State attorneys general represent their citizens in aggregate litigation that bears a striking resemblance to the much-maligned damages class action. Yet, while class actions are subject to a raft of procedural rules designed to protect absent class members, equivalent suits in the public sphere are largely free from constraint. The procedural disconnect between the two categories of aggregate litigation reflects a widespread assumption that attorneys general will adequately represent the interests of the state’s citizens, obviating any need for case-specific mechanisms for assuring the loyalty of lawyer to client.

This Article challenges the presumption of adequate public representation. By conflating …

Penalty Clauses And The Cisg, Jack Graves

Scholarly Works

Commercial agreements often provide for “fixed sums” payable upon a specified breach. Such agreements are generally enforced in civil law jurisdictions. In contrast, the common law distinguishes between “liquidated damages” and “penalty” clauses, enforcing the former, while invalidating the latter as a penalty. The UN Convention on Contracts for the International Sale of Goods (CISG) does not directly address the payment of “fixed sums” as damages, and the validity of “penalty” clauses has, traditionally, been relegated to otherwise applicable domestic national law under CISG Article 4. This traditional orthodoxy has recently been challenged—suggesting that the fate of a penalty clause …

Recovery Of “Intrinsic Value” Damages In Case Of Negligently Killed Pet Dog, William A. Reppy Jr., Calley Gerber

Faculty Scholarship

The North Carolina Court of Appeals, in a case where negligent killing of a pet dog with no market value was admitted, has denied recovery of “intrinsic” damages (also called “actual” damages). Shera v. NC State University Veterinary Teaching Hospital, 723 S.E.2d 352 (N.C. App. 2012). Because the holding is narrow and the type of damages denied are not the same as emotional damages, a close look at the decision is warranted.

Does Product Liability Make Us Safer?, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

Product liability law is intended to create an environment that fosters safer products. However, this law often has adverse consequences. Some of the problems stem from the inherent nature of product risk decisions and the function of tort liability, while others may derive from individuals’ cognitive limitations and inability to think properly about balancing risk and cost. This paper examines both types of problems and summarizes relevant academic literature.

What Does Tort Law Do? What Can It Do?, Scott Hershovitz

Articles

It’s not hard to describe what tort law does. As a first approximation, we might say that tort empowers those who suffer certain sorts of injuries or invasions to seek remedies from those who brought about those injuries or invasions. The challenge is to explain why tort does that, or to explain what tort is trying to do when it does that. After all, it is not obvious that we should have an institution specially concerned with the injuries and invasions that count as torts.

Is Tort Law A Form Of Institutionalized Revenge, Gabriel S. Mendlow

Articles

Viewed in a certain light, tort law serves primarily to give injury victims a means of imposing onerous burdens on their injurers. Through the remedy of injunction, tort law enables victims to restrict their injurers' freedom of action, and through the remedies of damages and restitution, tort law enables victims to deprive their injurers of money and other things of value. Moreover, tort law distinctively grants victims themselves the power to impose these burdens, rather than reserving prosecutorial discretion to the state. These features of tort law invite the charge that tort law is essentially a form of institutionalized revenge. …

Making Plaintiffs Whole: A Tax Problem Of Interest, William E. Foster

William E Foster

The Hedonic Impact Of Stand-Alone Emotional Harms: An Analysis Of Survey Data, David E. Depianto

David E. DePianto

This paper employs survey data on subjective well-being and a battery of self-assessed health measures to estimate the hedonic impact of emotional health, as decoupled from its physical counterpart. The disaggregation of global health into physical and emotional components is done with a parochial eye toward tort law, which has historically drawn a distinction between physical and emotional harms, limiting recovery on the latter — particularly “stand-alone” emotional harms —through various common law doctrines. The results of three sets of regression analyses suggest that a range of potentially inactionable emotional conditions, including emotional conditions with no concomitant physical manifestations, exert …