Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

2010

Loyola of Los Angeles Law Review

Articles 1 - 30 of 59

Full-Text Articles in Law

Dialectic Of Injury And Remedy, Marc Galanter Sep 2010

Dialectic Of Injury And Remedy, Marc Galanter

Loyola of Los Angeles Law Review

We are here to discuss injuries without remedies. I want to begin the discussion by considering the very complex relations between these two notions. My argument is: (1) Each is a cultural construction-but no less real for that. Both injury and remedy can, at a given moment in a given society, be regarded as positive and measurable. But if we step back, extend our time horizon, and widen our view beyond a given legal system, we see (a) that these notions are inextricably bound up not only with theories of justice but also with images of personal wholeness and social ...


Imagined Rights Without Remedy: The Politics Of Novel Legal Claims, Geroge Lovell Sep 2010

Imagined Rights Without Remedy: The Politics Of Novel Legal Claims, Geroge Lovell

Loyola of Los Angeles Law Review

Remedies for civil rights violations are only practically available where government officials choose to empower institutions that can protect those rights. When the Civil Rights Section (CRS) of the U.S. Department of Justice was formed in 1939, almost no federal civil rights law or institutional capacity existed to protect civil rights. This Article uses citizens' letters to the CRS to explore the politics of the CRS's limited and experimental strategy of using litigation to expand federal civil rights protections. Although the scope of civil rights law has expanded greatly since the inception of the CRS, the CRS experience ...


What Is Civil Justice, Jason M. Solomon Sep 2010

What Is Civil Justice, Jason M. Solomon

Loyola of Los Angeles Law Review

This Article first explores the meaning of the term "civil justice" as it is used in both academic and popular discourse. It then examines the idea of civil justice by looking at three key examples: (1) the U.S. tort system (specifically governing auto accidents); (2) the no-fault regimes of New Zealand, U.S. workers' compensation, and the 9/11 Victim Compensation Fund; and (3) the phenomenon of apologies, instead of compensation, as remedies in medical malpractice cases. The Article concludes that an important component of civil justice is the ability of a person to hold accountable one who has ...


Hui V. Castaneda: Beyond Cruel And Unusual, Adele Kimmel, Arthur Bryant, Amy Radon Sep 2010

Hui V. Castaneda: Beyond Cruel And Unusual, Adele Kimmel, Arthur Bryant, Amy Radon

Loyola of Los Angeles Law Review

When immigration detainee Francisco Castaneda died of penile cancer in 2008 after what appeared to be intentional neglect by federal health officials, his family members became plaintiffs in a lawsuit that Castaneda had filed against the United States and several federal Public Health Service (PHS) officers and employees. The suit alleged medical negligence by the United States and constitutional violations by the PHS officials. The PHS officials claimed immunity from suit, and the U.S. Supreme Court unanimously held that the family could not sue the federal officials directly and that the only available remedy was through a suit against ...


Fear Of Cancer, S. Lochlann Jain Sep 2010

Fear Of Cancer, S. Lochlann Jain

Loyola of Los Angeles Law Review

While the cancer rate and related statistics remain remarkably high, people rarely consider the actual suffering of people living with and dying from cancer as the real sacrifice for, and structural result of, the everyday use of carcinogens such as those in gasoline, pesticides, and cosmetics. On the heels of the recently published President's Cancer Panel Report, "Reducing Environmental Cancer Risk: What We Can Do Now," this Article aims to better understand why "fear of cancer" litigation has failed to accomplish its intended purpose-to distribute the costs of known and potentially toxic chemicals-and examines how the relevant law justifies ...


Automobile Injuries As Injuries With Remedies: Driving, Insurance, Torts, And Changing The Choice Architecture Of Auto Insurance Pricing, Jennifer B. Wriggins Sep 2010

Automobile Injuries As Injuries With Remedies: Driving, Insurance, Torts, And Changing The Choice Architecture Of Auto Insurance Pricing, Jennifer B. Wriggins

Loyola of Los Angeles Law Review

While mandatory auto insurance laws virtually guarantee the availability of remedies for auto injuries, other types of physical injuries, including those resulting from domestic violence, lack similar protections. By providing a broad array of compensation mechanisms to auto accident victims, the law encourages people to drive more. The rationale underlying that public policy has, however, eroded. Environmental degradation, public health problems, and other costs require overhauling the system. This Article recommends two changes to the auto insurance system aimed at encouraging people to drive less.


Zen And The Art Of Tort Litigation, Anne Bloom Sep 2010

Zen And The Art Of Tort Litigation, Anne Bloom

Loyola of Los Angeles Law Review

Legal analysis in tort litigation should encourage deeper engagement with the plaintiffs pain and suffering. Focusing more on understanding the causes and experience of human suffering-the Zen approach-will advance traditional tort goals of compensation and deterrence, as well as provide the plaintiff with a more positive litigation experience. This Article argues that current practices in tort litigation place too much emphasis on bodily harm and expert testimony, and unnecessarily position the plaintiff as a victim. Alternatively, a Zen approach recognizes that the body and mind are linked, places greater weight on direct, experiential testimony, and acknowledges the complexity and fluidity ...


What Happened To Unjust Enrichment In California - The Deterioration Of Equity In The California Courts, Douglas L. Johnson, Neville L. Johnson Sep 2010

What Happened To Unjust Enrichment In California - The Deterioration Of Equity In The California Courts, Douglas L. Johnson, Neville L. Johnson

Loyola of Los Angeles Law Review

Under common law, the principles ofequity have always demanded the recognition of the right of individuals to seek recovery under the theory of unjust enrichment. Recovery under this doctrine is so deeply embedded into Western Society that it continues to be a core element in legal education and is codified in the Restatement Third of Contracts. Despite this rich tradition, an alarming divergence in decisions among California courts is deteriorating unjust enrichment as an independent cause- of-action, leaving many Californians who have been taken advantage of, unprotected. This Article examines the historical underpinnings of unjust enrichment and the confusion among ...


Lumping As Default In Tort Cases: The Cultural Interpretation Of Injury , David M. Engel Sep 2010

Lumping As Default In Tort Cases: The Cultural Interpretation Of Injury , David M. Engel

Loyola of Los Angeles Law Review

Empirical studies of the tort law system suggest that "lumping," or decisions by victims to do without adequate remedies, should be regarded as the predominant response to injury in American society and elsewhere. Yet research on lumping remains conceptually impoverished and gives insufficient attention to the cultural frameworks victims use to interpret their experiences and determine their responses. This Article presents the stories of injury victims in Thailand and compares their common-sense understandings of torts and tort law to those of injured Americans. It argues that analyses of lumping in America as well as Asia should take into account the ...


Assault And Battery On Property, Gowri Ramachandran Sep 2010

Assault And Battery On Property, Gowri Ramachandran

Loyola of Los Angeles Law Review

Both criminal and tort law seek, in part, to respond to the harm inflicted on persons' organic, human, continuous bodies, through hitting, offensive groping, rape, stabbing, gunshots, vehicular homicide, and more. But could there be such a thing as assault and battery on a person's inorganic, non-human, discontinuous body? A battery on one's prosthetic arm, on one's wheelchair, on one's cochlear implant? Even a battery on one's iPhone or computer, which some users have provocatively begun to call an "exobrain"? This Article investigates whether there is any use in employing metaphors such as "exobrain," "battery ...


Body Polluted: Questions Of Scale, Gender, And Remedy, Dayna Nadine Scott Sep 2010

Body Polluted: Questions Of Scale, Gender, And Remedy, Dayna Nadine Scott

Loyola of Los Angeles Law Review

This Article offers a critique of tort remedies grounded in feminist theory of the body. It demonstrates how tort law is invested in a notion of an individuated legal subject, which fails to capture the critical interconnectedness of bodies in a social, political, historical, and colonial context. Taking the "injury" of endocrine disruption in a Canadian Aboriginal community as an example of a contemporary pollution harm, the analysis considers various torts on a conceptual level, and what they might offer the Aamjiwnaang First Nation in the way of remedies. In each case, what the tort can do depends on how ...


Too Big To Remedy - Rethinking Mass Restitution For Slavery And Jim Crow, Kaimipono David Wenger Sep 2010

Too Big To Remedy - Rethinking Mass Restitution For Slavery And Jim Crow, Kaimipono David Wenger

Loyola of Los Angeles Law Review

Slavery and Jim Crow inflicted horrific harms on Blacks in America. Official silence aggravated that harm, as neither victims nor their descendants received monetary restitution, nor even (until very recently) any official apology. Reparations advocates have repeatedly called for compensation to slave descendants. But how exactly does society compensate for slavery?

Of course, compensation for mass injustice is always difficult to calculate and administer. Slavery puts the normal concerns of mass compensation into sharp relief and adds a whole new set of unique concerns for courts, legislators, and scholars.

In this Article, I use slavery and Jim Crow harms as ...


Redefining Commonality For Consumer Class Actions Under California Business And Professions Code Sections 17200 And 17500, Roxana Mehrfar Sep 2010

Redefining Commonality For Consumer Class Actions Under California Business And Professions Code Sections 17200 And 17500, Roxana Mehrfar

Loyola of Los Angeles Law Review

This Note explores California's Unfair Competition Law and critiques how courts have applied the commonality requirement for class certification of Unfair Competition Law claims. In particular, this Note considers the Unfair Competition Law in light of the combined effects of Proposition 64's standing requirements and the California Supreme Court's decision in In re Tobacco II Cases, which limited the scope of Proposition 64. This Note also provides a general background of the liability standards for each prong of the Unfair Competition Law, examines the federal preemption defense, and proposes a new standard for commonality.


Essay: Can Human Rights Practice Be A Critical Project - A View From The Ground, Lucie White, Jeremy Perelman Sep 2010

Essay: Can Human Rights Practice Be A Critical Project - A View From The Ground, Lucie White, Jeremy Perelman

Loyola of Los Angeles Law Review

Critics have condemned human rights advocacy as being a deeply problematic solution to the sub-subsistence poverty that plagues the post-colonial Global South. This Essay discusses the efforts of four economic and social rights advocates working in Africa. Each succeeded by working within, but unconfined by, the approaches of the traditional human rights advocacy framework. The innovative strategies the advocates deployed may promote progressive institutional innovation in the provision of social welfare benefits. Still, single instances of innovation may not have an enduring impact on either extreme poverty or global inequality, the problems facing the Global South.


Further Empirical Insights And Findings On The Eighth Circuit, Robert Steinbuch Sep 2010

Further Empirical Insights And Findings On The Eighth Circuit, Robert Steinbuch

Loyola of Los Angeles Law Review

While empirical research is often eschewed in legal analysis, it can provide a firm basis on which to predict judicial decisions. As a follow-up to An Empirical Analysis of Reversal Rates in the Eighth Circuit During 2008, this Article provides further insights into the correlation between a district judge's political affiliation and the rate at which the judge is reversed. Correlation, whether with or without a causal connection, is a critical predictor of a case's success on appeal. Further objective research is encouraged beyond the Eight Circuit. Such research should concentrate not on dissenting rates, but on isolating ...


Protecting Absent Stakeholders In Foreclosure Litigation: The Foreclosure Crisis, Mortgage Modification, And State Court Responses, Andrew J. Kazakes Jun 2010

Protecting Absent Stakeholders In Foreclosure Litigation: The Foreclosure Crisis, Mortgage Modification, And State Court Responses, Andrew J. Kazakes

Loyola of Los Angeles Law Review

No abstract provided.


Trimming Confrontation's Claws: Navigating The Uncertain Jurisprudential Topography Of The Post-Melendez-Diaz Confrontation Clause, Oliver M. Gold Jun 2010

Trimming Confrontation's Claws: Navigating The Uncertain Jurisprudential Topography Of The Post-Melendez-Diaz Confrontation Clause, Oliver M. Gold

Loyola of Los Angeles Law Review

No abstract provided.


The War Of Art, Not The Art Of War: Von Saher V. Norton Simon Museum Of Art At Pasadena And The Continuing Fight To Retrieve Nazi-Looted Art In California, Tsolik Kazandjian Jun 2010

The War Of Art, Not The Art Of War: Von Saher V. Norton Simon Museum Of Art At Pasadena And The Continuing Fight To Retrieve Nazi-Looted Art In California, Tsolik Kazandjian

Loyola of Los Angeles Law Review

No abstract provided.


Issues In Appraisal Regulation: The Cracks In The Foundation Of The Mortgage Lending Process, J. Kevin Murray Jun 2010

Issues In Appraisal Regulation: The Cracks In The Foundation Of The Mortgage Lending Process, J. Kevin Murray

Loyola of Los Angeles Law Review

No abstract provided.


Introduction: Why Didn't The Courts Stop The Mortgage Crisis?, Lauren E. Willis Jun 2010

Introduction: Why Didn't The Courts Stop The Mortgage Crisis?, Lauren E. Willis

Loyola of Los Angeles Law Review

No abstract provided.


Is Life The Same As Death?: Implications Of Graham V. Florida, Roper V. Simmons, And Atkins V. Virginia On Life Without Parole Sentences For Juvenile And Mentally Retarded Offenders, Natalie Pifer Jun 2010

Is Life The Same As Death?: Implications Of Graham V. Florida, Roper V. Simmons, And Atkins V. Virginia On Life Without Parole Sentences For Juvenile And Mentally Retarded Offenders, Natalie Pifer

Loyola of Los Angeles Law Review

No abstract provided.


Police Misconduct And Liability: Applying The State-Created Danger Doctrine To Hold Police Officers Accountable For Responding Inadequately To Domestic-Violence Situations, Milena Shtelmakher Jun 2010

Police Misconduct And Liability: Applying The State-Created Danger Doctrine To Hold Police Officers Accountable For Responding Inadequately To Domestic-Violence Situations, Milena Shtelmakher

Loyola of Los Angeles Law Review

No abstract provided.


United We Stand, Disparate We Fall: Putting Individual Victims Of Reverse Redlining In Touch With Their Class, Andrew Lichtenstein Jun 2010

United We Stand, Disparate We Fall: Putting Individual Victims Of Reverse Redlining In Touch With Their Class, Andrew Lichtenstein

Loyola of Los Angeles Law Review

No abstract provided.


Good Cop, Bad Cop: Market Competitors, Udap Consumer Protection Laws, And The U.S. Mortgage Crisis, James J. Pulliam Jun 2010

Good Cop, Bad Cop: Market Competitors, Udap Consumer Protection Laws, And The U.S. Mortgage Crisis, James J. Pulliam

Loyola of Los Angeles Law Review

No abstract provided.


Class Retreat From Mass Deceit: Assessing Class Action Compatibility With Truth In Lending Act Rescission, Jeffrey A. Payne Jun 2010

Class Retreat From Mass Deceit: Assessing Class Action Compatibility With Truth In Lending Act Rescission, Jeffrey A. Payne

Loyola of Los Angeles Law Review

No abstract provided.


My (Initial) Impressions Of David Leonard, Edward J. Imwinkelried Mar 2010

My (Initial) Impressions Of David Leonard, Edward J. Imwinkelried

Loyola of Los Angeles Law Review

No abstract provided.


In Memoriam: David P. Leonard, Myrna S. Raeder Mar 2010

In Memoriam: David P. Leonard, Myrna S. Raeder

Loyola of Los Angeles Law Review

No abstract provided.


Determining Uniformity Within The Federal Circuit By Measuring Dissent And En Banc Review, Christopher A. Cotropia Mar 2010

Determining Uniformity Within The Federal Circuit By Measuring Dissent And En Banc Review, Christopher A. Cotropia

Loyola of Los Angeles Law Review

No abstract provided.


Inequitable Conduct, David Mcgowan Mar 2010

Inequitable Conduct, David Mcgowan

Loyola of Los Angeles Law Review

No abstract provided.


In Memoriam: David P. Leonard, Laird Kirkpatrick Mar 2010

In Memoriam: David P. Leonard, Laird Kirkpatrick

Loyola of Los Angeles Law Review

No abstract provided.