Judges Commons^™

Are Damages Different? Bivens And National Security, Andrew Kent

Faculty Scholarship

Litigation challenging the national security actions of the federal government has taken a seemingly paradoxical form in recent years. Prospective coercive remedies like injunctions and habeas corpus (a kind of injunction) are traditionally understood to involve much greater intrusions by the judiciary into government functioning than retrospective money damages awards. Yet federal courts have developed and strictly applied doctrines barring Bivens damages actions against federal officials because of an asserted need to preserve the prerogatives of the political branches in national security and foreign affairs. At the same time, the courts have been increasingly assertive in cases involving coercive remedies, …

Cy Pres In Class Action Settlements, Rhonda Wasserman

Articles

Monies reserved to settle class action lawsuits often go unclaimed because absent class members cannot be identified or notified or because the paperwork required is too onerous. Rather than allow the unclaimed funds to revert to the defendant or escheat to the state, courts are experimenting with cy pres distributions – they award the funds to charities whose work ostensibly serves the interests of the class “as nearly as possible.”

Although laudable in theory, cy pres distributions raise a host of problems in practice. They often stray far from the “next best use,” sometimes benefitting the defendant more than the …