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The Two-Trillion Dollar Carve-Out: Foreign Manufacturers Of Defective Goods And The Death Of H.R. 4678 In The 111th Congress, Andrew Popper 2011 American University, Washington College of Law

The Two-Trillion Dollar Carve-Out: Foreign Manufacturers Of Defective Goods And The Death Of H.R. 4678 In The 111th Congress, Andrew Popper

Articles in Law Reviews & Other Academic Journals

Whatever happened to H.R. 4678, The Foreign Manufacturers Legal Accountability Act? While at first the bill looked like it would sail through, vocal and well-funded opposition from foreign manufacturers and their U.S. representatives placed its future in doubt – and ultimately killed the bill. Gross sales of foreign manufactured goods in the U.S. exceed two trillion dollars annually. Conservatively, there are tens of millions of defective, dangerous, and in some instances deadly goods produced abroad for sale in U.S. markets (e.g., Chinese dry-wall, toxic levels of lead paint on toys, contaminated pet food, allegedly lurching cars ...


Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew F. Popper 2011 American University Washington College of Law

Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew F. Popper

Articles in Law Reviews & Other Academic Journals

Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.

This Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in ...


Corrective Justice For Civil Recourse Theorists, Scott Hershovitz 2011 University of Michigan Law School

Corrective Justice For Civil Recourse Theorists, Scott Hershovitz

Articles

Though I think the civil recourse critique of the leading conceptions of corrective justice is in some respects misguided, I do not want to join up to the thrust and parry here. My aim in this Article is to show that there is a better conception of corrective justice than the ones that Goldberg and Zipursky target, that this conception of corrective justice is untouched by the civil recourse critique, and that civil recourse is best understood as a corrective justice account of tort. In other words, I aim to explain corrective justice for civil recourse theorists.


Notice And Patent Remedies, Herbert J. Hovenkamp 2011 University of Pennsylvania Law School

Notice And Patent Remedies, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

In private enforcement systems such as the one for patents, remedies perform the “public” function of determining the optimal amount of protection and deterrence. If every patent were properly granted and had just the right scope to incentivize innovation, then strict enforcement and harsh penalties for infringement would be a good idea. But in a world where too many patents are granted, their boundaries are often ambiguous and scope excessive, things are not so simple. The expected likelihood and magnitude of the penalty determines the number of infringement suits and the litigation resources that will be poured into them. As ...


Section 2259 Restitution Claims And Child Pornography Possession, Dina McLeod 2011 University of Michigan Law School

Section 2259 Restitution Claims And Child Pornography Possession, Dina Mcleod

Michigan Law Review

In 2009, a child pornography victim brought a criminal restitution claim against a defendant who possessed images of her abuse. The statutory provision authorizing restitution, 18 U.S.C. § 2259, had never before been used to bring a claim against a defendant who had only possessed, rather than produced or distributed, child pornography ("child pornography possession defendants"). The federal courts have not developed a consistent approach to resolving Section 2259 claims involving such defendants. This Note argues that two conceptions of traditional proximate cause doctrine can provide a framework for analyzing such claims. It examines Section 2259 claims using both ...


After The Spill Is Gone: The Gulf Of Mexico, Environmental Crime, And Criminal Law, David M. Uhlmann 2011 University of Michigan Law School

After The Spill Is Gone: The Gulf Of Mexico, Environmental Crime, And Criminal Law, David M. Uhlmann

Articles

The Gulf oil spill was the worst environmental disaster in U.S. history, and will be the most significant criminal case ever prosecuted under U.S. environmental laws. The Justice Department is likely to prosecute BP, Transocean, and Halliburton for criminal violations of the Clean Water Act and the Migratory Bird Treaty Act, which will result in the largest fines ever imposed in the United States for any form of corporate crime. The Justice Department also may decide to pursue charges for manslaughter, false statements, and obstruction of justice. The prosecution will shape public perceptions about environmental crime, for reasons ...


Eliminating The Need For Caps On Title Vii Damage Awards: The Shield Of Kolstad V. American Dental Association, Michael Harper 2011 Boston University School of Law

Eliminating The Need For Caps On Title Vii Damage Awards: The Shield Of Kolstad V. American Dental Association, Michael Harper

Faculty Scholarship

After recounting the legislative history of the Civil Rights Act of 1991, this article reconsiders the legislative compromise that allowed in this Act for capped compensatory and punitive damages as remedies for Title VIIviolations. This reconsideration is made in light of the Court’s decision in Kolstad v. American Dental Association, granting employers protection from a punitive damage remedy if they can demonstrate a good faith effort to comply with the Act. The article argues that this holding obviates the need for damage cap protection of innocent employers. It does so by enabling employers to shield themselves from the threat ...


Respondent Superior As An Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims, J. J. Burns 2011 University of Michigan law School

Respondent Superior As An Affirmative Defense: How Employers Immunize Themselves From Direct Negligence Claims, J. J. Burns

Michigan Law Review

Most courts hold that where a defendant employer admits that it is vicariously liable for its employee's negligence, a plaintiff's additional claims of negligent entrustment, hiring, retention, supervision, and training must be dismissed. Generally, courts apply this rule based on the logic that allowing a plaintiff's additional claims adds no potential liability beyond that which has already been admitted. Furthermore, since the additional claims merely allege a redundant theory of recovery once a respondeat superior admission has been made, the prejudicial evidence of an employee's prior bad acts which often accompanies direct negligence claims against employers ...


The Politics Of Corporate Alien Tort Cases, Chimene I. Keitner 2010 University of California, Hastings

The Politics Of Corporate Alien Tort Cases, Chimene I. Keitner

Chimene I Keitner

No abstract provided.


The Role Of Remedies In The Relational Theory Of Contract: A Preliminary Inquiry, Dr. Yehuda Adar, Dr. Moshe Gelbard 2010 University of Haifa

The Role Of Remedies In The Relational Theory Of Contract: A Preliminary Inquiry, Dr. Yehuda Adar, Dr. Moshe Gelbard

Yehuda Adar Dr.

One of the leading contemporary theories of contract law is the relational theory. Notwithstanding its remarkable development since the foundational works of Macaulay and Macneil it would seem reasonably fair to maintain that this body of literature has generally neglected the discussion of legal remedies. Scholarly literature pertaining to the relational theory has typically focused on extra-legal or informal devices for the regulation of long-term contractual relations, such as: consensual adjustment of primary contractual arrangements in light of changing circumstances, informal incentives for performance and cooperation, the tendency to abstain from relying on formal rights and duties, and the frequent ...


The Decision In Akai: The Interaction Of Apparent Authority And Knowing Receipt, Michael LP Lower 2010 Chinese University of Hong Kong

The Decision In Akai: The Interaction Of Apparent Authority And Knowing Receipt, Michael Lp Lower

Michael LP Lower

The recent decision of Hong Kong's Court of Final Appeal in Thanakharn Kasikorn Chamkat (Mahachon) v Akai Holdings Ltd ([2010] HKEC 1692, CFA) illustrated the interaction of parallel claims in the tort of conversion and for knowing receipt when a director wrongly claims to be entitled to give a lender security over corporate assets that are then disposed of in exercise of the lender's (non-existent) security rights.


Investors And Employees As Relief Defendants In Investment Fraud Receiverships: Promoting Efficiency By Following The Plain Meaning Of “Legitimate Claim Or Ownership Interest, Jared A. Wilkerson 2010 College of William and Mary

Investors And Employees As Relief Defendants In Investment Fraud Receiverships: Promoting Efficiency By Following The Plain Meaning Of “Legitimate Claim Or Ownership Interest, Jared A. Wilkerson

Jared A. Wilkerson

Relief defendants are nominal, innocent parties who hold funds traceable to the receivership but have no legitimate claim or ownership interest in them. These nominal parties, as opposed to full or primary defendants, have no cause of action asserted against them, and if they show no legitimate claim to the funds traced to the receivership, the funds are disgorged — generally at summary judgment. This seemingly simple relief defendant tool is used by receivers and regulatory agencies to quickly recover receivership funds for ultimate distribution to creditors. Recently, however, conflict has arisen in federal courts concerning the meaning of “legitimate claim ...


La Falta De Legitimidad En Los Contratos Y El Remedio De La Ineficacia En Sentido Estricto, Rómulo Morales 2010 Pontificia Universidad Católica del Perú

La Falta De Legitimidad En Los Contratos Y El Remedio De La Ineficacia En Sentido Estricto, Rómulo Morales

Rómulo Martín Morales Hervias

Este documento comenta la Casación N° 912-2010 de 28 de marzo de 2011 emitida por la Sala Transitoria de la Corte Suprema de Justicia de la República del Perú sobre la falta de legitimidad. Este concepto de Derecho Civil está basado en valores jurídicos importantes como la protección de la propiedad y la prohibición del abusivismo.


Resarcimiento Del Daño Moral Y Del Daño A La Persona Vs. Indemnización Del Desequilibrio Económico A Favor Del Cónyuge Débil En El Tercer Pleno Casatorio, Rómulo Morales 2010 Pontificia Universidad Católica del Perú

Resarcimiento Del Daño Moral Y Del Daño A La Persona Vs. Indemnización Del Desequilibrio Económico A Favor Del Cónyuge Débil En El Tercer Pleno Casatorio, Rómulo Morales

Rómulo Martín Morales Hervias

En el presente estudio se analiza algunas afirmaciones de la Tercer Pleno Casatorio Civil sobre daño a la persona, daño moral, y en general sobre la obligación indemnizatoria por separación de hecho y de divorcio para el cónyuge perjudicado


Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew Popper 2010 American University, Washington College of Law

Capping Incentives, Capping Innovation, Courting Disaster: The Gulf Oil Spill And Arbitrary Limits On Civil Liability, Andrew Popper

Andrew Popper

Limiting liability by establishing an arbitrary cap on civil damages is bad public policy. Caps are antithetical to the interests of consumers and at odds with the national interest in creating incentives for better and safer products. Whether the caps are on non-economic loss, punitive damages, or set for specific activity, they undermine the civil justice system, deceiving juries and denying just and reasonable compensation for victims in a broad range of fields.

This Article postulates that capped liability on damages for offshore oil spills may well have been an instrumental factor contributing to the recent Deepwater Horizon catastrophe in ...


The Two-Trillion Dollar Carve-Out: Foreign Manufacturers Of Defective Goods And The Death Of H.R. 4678 In The 111th Congress, Andrew Popper 2010 American University, Washington College of Law

The Two-Trillion Dollar Carve-Out: Foreign Manufacturers Of Defective Goods And The Death Of H.R. 4678 In The 111th Congress, Andrew Popper

Andrew Popper

Whatever happened to H.R. 4678, The Foreign Manufacturers Legal Accountability Act? While at first the bill looked like it would sail through, vocal and well-funded opposition from foreign manufacturers and their U.S. representatives placed its future in doubt – and ultimately killed the bill. Gross sales of foreign manufactured goods in the U.S. exceed two trillion dollars annually. Conservatively, there are tens of millions of defective, dangerous, and in some instances deadly goods produced abroad for sale in U.S. markets (e.g., Chinese dry-wall, toxic levels of lead paint on toys, contaminated pet food, allegedly lurching cars ...


Third Party Access And Refusal To Deal In European Energy Networks: How Sector Regulation And Competition Law Meet Each Other, Michael Diathesopoulos 2010 University of Cambridge

Third Party Access And Refusal To Deal In European Energy Networks: How Sector Regulation And Competition Law Meet Each Other, Michael Diathesopoulos

Michael Diathesopoulos

In this paper, we will analyse the issue of concurrence between competition and sector rules and the relation between parallel concepts within the two different legal frameworks. We will firstly examine Third Party Access in relation to essential facilities doctrine and refusal of access and we will identify the common points and objectives of these concepts and the extent to which they provide a context to each other’s implementation. Second, we will focus on how Commission uses sector regulation and objectives as a context within the process of implementation of competition law in the energy sector and third, we ...


The "Enlightened Barbarity" Of Inclusive Fitness And Wrongful Death: Biological Justifications For An Investment Theory Of Loss In Wycko V. Gnodtke, Ryan Shannon 2010 University of Michigan Law School

The "Enlightened Barbarity" Of Inclusive Fitness And Wrongful Death: Biological Justifications For An Investment Theory Of Loss In Wycko V. Gnodtke, Ryan Shannon

University of Michigan Journal of Law Reform

Wrongful death laws should permit and encourage courts and juries to consider the survivors' investment in decedents when determining wrongful death damages, given new biological justifications for this theory of loss. The investment theory of damages, which permits an award of damages based on the investment of financial resources relatives make in one another, originated in Michigan's courts in the early 1 960s, but as of present day has been largely abrogated. In the context of modern understandings of evolutionary biology, including kin selection theory and sociobiology, the investment theory of recovery accords with the goals of corrective justice ...


Torts, Frederick J. Moreau 2010 Golden Gate University School of Law

Torts, Frederick J. Moreau

Cal Law Trends and Developments

No abstract provided.


Remedies, Kenneth H. York 2010 Golden Gate University School of Law

Remedies, Kenneth H. York

Cal Law Trends and Developments

Remedial problems are best dealt with in the context of substantive law situations. However, the disparate characteristics of restitution, equitable remedies, and damages necessitate some generalized preliminary comment. We regret that the points raised in the California cases during a one-year period do not form a tidy or cohesive pattern or adapt themselves to a symmetrical outline.


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