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Full-Text Articles in Law
A Post-Spokeo Taxonomy Of Intangible Harms, Jackson Erpenbach
A Post-Spokeo Taxonomy Of Intangible Harms, Jackson Erpenbach
Michigan Law Review
Article III standing is a central requirement in federal litigation. The Supreme Court’s Spokeo decision marked a significant development in the doctrine, dividing the concrete injury-in-fact requirement into two subsets: tangible and intangible harms. While tangible harms are easily cognizable, plaintiffs alleging intangible harms can face a perilous path to court. This raises particular concern for the system of federal consumer protection laws where enforcement relies on consumers vindicating their own rights by filing suit when companies violate federal law. These plaintiffs must often allege intangible harms arising out of their statutorily guaranteed rights. This Note demonstrates that Spokeo’s …
Renovations Needed: The Fda's Floor/Ceiling Framework, Preemption, And The Opioid Epidemic, Michael R. Abrams
Renovations Needed: The Fda's Floor/Ceiling Framework, Preemption, And The Opioid Epidemic, Michael R. Abrams
Michigan Law Review
The FDA’s regulatory framework for pharmaceuticals uses a “floor/ceiling” model: administrative rules set a “floor” of minimum safety, while state tort liability sets a “ceiling” of maximum protection. This model emphasizes premarket scrutiny but largely relies on the state common law “ceiling” to police the postapproval drug market. As the Supreme Court increasingly holds state tort law preempted by federal administrative standards, the FDA’s framework becomes increasingly imbalanced. In the face of a historic prescription medication overdose crisis, the Opioid Epidemic, this imbalance allows the pharmaceutical industry to avoid internalizing the public health costs of their opioid products. This Note …
Standing's Expected Value, Jonathan Remy Nash
Standing's Expected Value, Jonathan Remy Nash
Michigan Law Review
This Article argues in favor of standing based on expected value of harm. Standing doctrine has been constructed in a way that is oblivious to the idea of expected value. If people have suffered a loss with a positive expected value, they have suffered an "injury in fact." The incorporation of expected value into standing doctrine casts doubt on many of the Supreme Court's decisions in which it denies standing because the relevant injury is too "speculative" or is not "likely" to be redressed by a decree in the plaintiff's favor. This Article addresses this shortcoming in standing jurisprudence by …
A Financial Economic Theory Of Punitive Damages, Robert J. Rhee
A Financial Economic Theory Of Punitive Damages, Robert J. Rhee
Michigan Law Review
This Article provides a financial economic theory of punitive damages. The core problem, as the Supreme Court acknowledged in Exxon Shipping Co. v. Baker, is not the systemic amount of punitive damages in the tort system; rather it is the risk of outlier outcomes. Low frequency, high severity awards are unpredictable, cause financial distress, and beget social cost. By focusing only on offsetting escaped liability, the standard law and economics theory fails to account for the core problem of variance. This Article provides a risk arbitrage analysis of the relationship between variance, litigation valuation, and optimal deterrence. Starting with settlement …
Engineering The Endgame, Ellen D. Katz
Engineering The Endgame, Ellen D. Katz
Michigan Law Review
This Article explores what happens to longstanding remedies for past racial discrimination as conditions change. It shows that Congress and the Supreme Court have responded quite differently to changed conditions when they evaluate such remedies. Congress has generally opted to stay the course, while the Court has been more inclined to view change as cause to terminate a remedy. The Article argues that these very different responses share a defining flaw, namely, they treat existing remedies as fixed until they are terminated. As a result, remedies are either scrapped prematurely or left stagnant despite dramatically changed conditions. The Article seeks …
Injunctive Relief For Constitutional Violations: Does The Civil Service Reform Act Preclude Equitable Remedies?, Elizabeth A. Wells
Injunctive Relief For Constitutional Violations: Does The Civil Service Reform Act Preclude Equitable Remedies?, Elizabeth A. Wells
Michigan Law Review
This Note argues that the federal courts retain power to furnish equitable relief for constitutional violations to ensure adequate protection of federal employees' rights. Statutory procedures and remedies available under the Civil Service Reform Act of 1978 (CSRA) and related legislation should preempt judicially created equitable relief only where the government or federal agency affirmatively demonstrates that these procedures are constitutionally sufficient. Part I canvasses the current lower court response to the question of preclusion and notes the various routes taken by the courts in inferring congressional intent to preempt. This Part discusses varying interpretations of the Civil Service Reform …
Section 1983 And Implied Rights Of Action: Rights, Remedies, And Realism, Michael A. Mazzuchi
Section 1983 And Implied Rights Of Action: Rights, Remedies, And Realism, Michael A. Mazzuchi
Michigan Law Review
This Note criticizes the Court's current reconciliation of the implied right of action and section 1983 inquiries, and argues that the availability of lawsuits under section 1983 should be the same as under an implied right of action test. Part I, by offering a working definition of rights, suggests an approach to identifying statutorily created rights. Part II discusses the evolution of the Court's implied right of action ' jurisprudence, and explores several explanations for the Court's hesitancy to create implied rights of action. Part III examines the influence of the Court's implied right of action test on its jurisprudence …
Clarifying A "Pattern" Of Confusion: A Multi-Factor Approach To Civil Rico's Pattern Requirement, Ethan M. Posner
Clarifying A "Pattern" Of Confusion: A Multi-Factor Approach To Civil Rico's Pattern Requirement, Ethan M. Posner
Michigan Law Review
In an attempt to provide some needed definitional clarity and redirect civil RICO toward its intended focus, this Note argues that the federal judiciary should interpret the pattern requirement narrowly, focusing on four basic factors that best demonstrate a prolonged, continuing example of criminal activity. By emphasizing (1) the presence of multiple victims, (2) the duration of the RICO defendant's criminal activity, (3) the number of illicit commercial transactions, and (4) the existence of independent criminal decisions, courts could consistently limit civil RICO to the most pernicious offenders. Part I of this Note will examine judicial interpretations of RICO and …
Backing Off Bivens And The Ramifications Of This Retreat For The Vindication Of First Amendment Rights, Joan Steinman
Backing Off Bivens And The Ramifications Of This Retreat For The Vindication Of First Amendment Rights, Joan Steinman
Michigan Law Review
In Part I of this Article, Chappell and Bush are analyzed against the backdrop of the preceding Bivens cases. The analysis explains how these cases presented situations that were similar to one another but unlike any the Supreme Court previously had faced in Bivens cases. It demonstrates how the Court departed from the line of analysis that its previous Bivens cases had established, in a way that makes it more difficult for at least some plaintiffs seeking vindication of their constitutional rights to succeed in having a money damage remedy implied directly under the Constitution. The Article then argues that …
Limitation Borrowing In Federal Courts, Michigan Law Review
Limitation Borrowing In Federal Courts, Michigan Law Review
Michigan Law Review
This Note studies limitations on federal actions in light of Occidental Life. Part I discusses the reasons for limiting actions and presents a short history ·of the limitation of actions. Part II analyzes the alternatives for the federal courts when no statute of limitations applies directly. Finally, the Note suggests a solution that will achieve a result most nearly consistent with both the reasons for limiting actions and the proper role of the judiciary. It suggests, notwithstanding Occidental Life, that in some situations courts should borrow specific federal statutes of limitations and that in the remainder they should …
Recent Legal Literature, Henry H. Swan, James F. Tracey, Robert E. Bunker, Floyd R. Mechem, Bradley Thompson, James H. Brewster, Floyd R. Mechem, Horace Lafayette Wilgus
Recent Legal Literature, Henry H. Swan, James F. Tracey, Robert E. Bunker, Floyd R. Mechem, Bradley Thompson, James H. Brewster, Floyd R. Mechem, Horace Lafayette Wilgus
Michigan Law Review
Hughes: Handbook of Admiralty Law; Wilgus: Cases on the General Principles of the Law of Private Corporations; Spelling: A Treatise on Injunctions and Other Extraordinary Remedies; Brannon: A Treatise on the Rights and Privileges Guaranteed by the Fourteenth Amendment to the Constitution of the United States; Boone: Real Property Law, 2nd ed.; Abbott and Abbott: The Clerks' and Conveyancers' Assistant; Rose: Notes on the United States Reports; Nichols: Britton: An English Translation and Notes