Law Commons^™

Enhancing The Socially Instrumental Role Of Insurance: The Opportunity And Challenge Presented By The Ali Restatement Position On Breach Of The Duty To Defend, Jeffrey W. Stempel

Scholarly Works

The American Law Institute (ALI), in its current draft of the Restatement of the Law of Liability Insurance , has adopted the position that a liability insurer in breach of its duty to defend, but not acting in bad faith, forfeits the right to dispute coverage of the resulting judgment or reasonable, noncollusive settlement in a lawsuit. The ALI view is the minority rule in the courts in that most make bad faith a prerequisite for loss of a coverage defense but presumably will spur re-examination of the issue in many states. Unsurprisingly, insurers have opposed the ALI position with …

To The Victor Goes The Toil -- Remedies For Regulated Parties In Separation-Of-Powers Litigation, Kent H. Barnett

Scholarly Works

The U.S. Constitution imposes three key limits on the design of federal agencies. It constrains how agency officers are appointed, the extent of their independence from the President, and the range of issues that they can decide. Scholars have trumpeted the importance of these safeguards with soaring rhetoric. And the Supreme Court has permitted regulated parties to vindicate these safeguards through implied private rights of action under the Constitution. Regulated parties, for their part, have been successfully challenging agency structure with increased frequency. At the same time, regulated parties, courts, and scholars have largely ignored the practical question of “structural …

Of Carts And Horses: Organizing Remedies For The Classroom, Elaine W. Shoben

Scholarly Works

No abstract provided.

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 …

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 …

Reassessing Damages In Securities Fraud Class Actions, Elizabeth Chamblee Burch

Scholarly Works

No coherent doctrinal statement exists for calculating open-market damages for securities fraud class actions. Instead, courts have tried in vain to fashion common-law deceit and misrepresentation remedies to fit open-market fraud. The result is a relatively ineffective system with a hallmark feature: unpredictable damage awards. This poses a significant fraud deterrence problem from both a practical and a theoretical standpoint.

In 2005, the Supreme Court had the opportunity to clarify open-market damage principles and to facilitate earlier dismissal of cases without compensable economic losses. Instead, in Dura Pharmaceuticals v. Broudo, it further confused the damage issue by (1) perpetuating the …

Kosher Without Law: The Role Of Nonlegal Sanctions In Overcoming Fraud Within The Kosher Food Industry, S. Crincoli (Sigman)

Scholarly Works

No abstract provided.

Civil Liability And Remedies In Ohio Securities Transactions, Keith A. Rowley

Scholarly Works

The Ohio Securities Act (“OSA”) was enacted in 1913 to “guard [ ] investors against fraudulent enterprises, to prevent sales of securities based only on schemes purely speculative in character, and to protect the public from swindling peddlers of worthless stocks in mere paper corporations.” The OSA, which is administered by the Ohio Division of Securities (“Division”) and enforced by both the Division and private litigants, regulates the sale and purchase of securities in Ohio. The OSA and the rules and regulations promulgated pursuant to it by the Division are designed both to encourage compliance by those who might otherwise …

Suing States For Money: Constitutional Remedies After Alden And Florida Prepaid, Michael Wells

Scholarly Works

On June 23, 1999, the Supreme Court handed down three noteworthy decisions bearing on the law of constitutional remedies. Alden v. Maine struck down an attempt by Congress, acting under its Article I powers, to subject states to suits in state court on federal statutory grounds. Florida Prepaid Postsecondary Education Expense Board v. College Savings Bank curbed Congress' power under Section 5 of the Fourteenth Amendment to authorize suits against state governments on constitutional grounds, reasoning that a case cannot be made for the federal cause of action unless state law remedies are inadequate. A companion case, College Savings Bank …

Race, Angst And Capital Punishment: The Burger Court's Existential Struggle, Katherine R. Kruse

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This article chronicles the Burger Court's inability to fashion a suitable remedy for racism in the discretionary system of capital sentencing. The article discusses the Court's initial response, “remedial paralysis,” which is evident, not only in McGautha v. California, where the Court refused to find that the Due Process Clause was violated by standardless death sentencing, but also in Furman v. Georgia, where the Court decided to abolish the death penalty. The article further explores the Court's reinstatement of the death penalty, and two of the Court's forays into “bad faith” denial that sustained the death penalty, particularly the Court's …

Transcript Of The Florida Tobacco Litigation Symposium - Fact, Law, Policy And Significance, Jeffrey W. Stempel, Jean R. Sternlight

Scholarly Works

On November 17, 1997, Professors Jeffrey W. Stempel and Jean R. Sternlight joined a group of colleagues specializing in litigation at the Florida State University College of Law Review's Symposium on the tobacco litigation settlement reached between the State of Florida and five leading tobacco manufacturers that same year. The professors appeared on a panel to discuss the the relationship among the legal system, public health concerns, and tobacco. This is a transcript of those preceedings.

Violence Against Women And The Asylum Process, John Linarelli

Scholarly Works

Perhaps no area of public legislation generates as much controversy, or attracts as much rhetoric, as immigration. Immigration is perceived as the core of who we are as a nation. Legal norms governing the movement and migration of people across the borders of countries determine who is entitled to live in a country and ultimately who will control its resources. Immigration goes to the heart of sovereignty, particularly where sovereignty is popular, such as in consolidated democracies.' Asylum is a controversial issue within the immigration debate. This Article will interpret some of the recent developments in asylum law that are …

Equitable Recoupment: Revisiting An Old And Inconsistent Remedy, Camilla E. Watson

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This Article examines the development of recoupment by first comparing and contrasting other equitable remedies. Because discussions of related equitable remedies have filled tomes in themselves, this Article concentrates only on the more salient aspects of these remedies as they pertain to the development of recoupment in the federal tax context. Next, the established elements of recoupment will be discussed in depth, with particular emphasis on the views of Professor Andrews. The Article questions whether Professor Andrews's views represent the most effective analysis of the recoupment criteria in light of the judicial inconsistencies.

In discussing the ineffectiveness of recoupment as …

Section 1983, Martin A. Schwartz, George Pratt, Leon Friedman

Scholarly Works

No abstract provided.