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Full-Text Articles in Law

The Investor Compensation Fund, Alicia J. Davis Jan 2007

The Investor Compensation Fund, Alicia J. Davis

Articles

The prevailing view among securities regulation scholars is that compensating victims of secondary market securities fraud is inefficient. As the theory goes, diversified investors are as likely to be on the gaining side of a transaction tainted by fraud as the losing side. Therefore, such investors should have no expected net losses from fraud because their expected losses will be matched by expected gains. This Article argues that this view is flawed; even diversified investors can suffer substantial losses from fraud, presenting a compelling case for compensation. The interest in compensation, however, should be advanced by better means than are …


Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger Jan 2007

Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger

Articles

A number of states recognize hedonic damages as a separate category of recovery in tort and tort-like actions. Others consider lost enjoyment of life as an aspect of what are sometimes termed "disability" damages-damages for physical or mental impairment. Many other states permit juries to take account of lost enjoyment of life in setting compensation for pain and suffering or other forms of general damages. In all these jurisdictions, disability has loomed large. And the (explicit or implicit) view of disability is often one of tragic dependency and helplessness. As we show in Part I below, lawyers seeking hedonic damages …


Against Irreparable Benefits, Omri Ben-Shahar Jan 2007

Against Irreparable Benefits, Omri Ben-Shahar

Articles

In a recent essay in The Yale Law Journal, Douglas Lichtman argues that courts considering preliminary injunctions should account for irreparable benefits in addition to irreparable harms. This is a provocative idea. If a preliminary injunction harms one party but benefits the other, and if both effects are equally difficult to subsequently undo, why focus on one effect (harm) and ignore the other (benefit)? There is a compelling geometric validity to this symmetry observation. But is this a valuable “flipping” exercise? Does it shed a new light and provide useful insight into the law of injunctions? In this Response I …


Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh Oct 2006

Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh

Michigan Telecommunications & Technology Law Review

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to …


Second Best Damage Action Deterrence, Margo Schlanger Jan 2006

Second Best Damage Action Deterrence, Margo Schlanger

Articles

Potential defendants faced with the prospect of tort or tort-like damage actions can reduce their liability exposure in a number of ways. Prior scholarship has dwelled primarily on the possibility that they may respond to the threat of liability by augmenting the amount of care they take.1 Defendants (I limit myself to defendants for simplicity) will increase their expenditures on care, so the theory goes, when those expenditures yield sufficient liability-reducing dividends; more care decreases liability exposure by simultaneously making it less likely that the actors will be found to have behaved tortiously in the event of an accident and …


Rule-Oriented Realism, Emily Sherwin May 2005

Rule-Oriented Realism, Emily Sherwin

Michigan Law Review

In his new book The Law and Ethics of Restitution, Hanoch Dagan undertakes to explain and justify the American law of restitution. He offers a broad theoretical account of this poorly understood subject, designed not only to fortify the substantive law of restitution but also to clarify the role and methodology of courts in developing the field. Dagan's book also provides lively discussion of the role of restitution in some of the most highly publicized legal developments of recent years. Those who think of restitution as an obscure branch of "legal remedies" may be surprised to read about the …


Credible Coercion, Oren Bar-Gill, Omri Ben-Shahar Jan 2005

Credible Coercion, Oren Bar-Gill, Omri Ben-Shahar

Articles

The ideal of individual freedom and autonomy requires that society provide relief against coercion. In the law, this requirement is often translated into rules that operate "postcoercion" to undo the legal consequences of acts and promises extracted under duress. This Article argues that these ex post antiduress measures, rather than helping the coerced party, might in fact hurt her. When coercion is credible-when a credible threat to inflict an even worse outcome underlies the surrender of the coerced party-ex post relief will only induce the strong party to execute the threatened outcome ex ante, without offering the choice to surrender, …


Justice For The Collective: The Limits Of The Human Rights Class Action, Paul R. Dubinsky May 2004

Justice For The Collective: The Limits Of The Human Rights Class Action, Paul R. Dubinsky

Michigan Law Review

The class action lawsuit is our grand procedural experiment in collective justice. As against the U.S. legal system's strong orientation toward individual rights rather than group rights, the class action is a countercurrent. Through Rule 23 of the Federal Rules of Civil Procedure, large numbers of previously unaffiliated individuals can proceed in federal court as a group, litigating through representatives. A recent form of this litigation, the human rights class action, takes this experiment to its far reaches. In the human rights class action, the tension between individual claimants and the group as a whole can be heightened. The class …


What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser May 2004

What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser

Michigan Law Review

Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald …


The Foggy Road For Evaluating Punitive Damages: Lifting The Haze From The Bmw/State Farm Guideposts, Steven L. Chanenson, John Y. Gotanda Jan 2004

The Foggy Road For Evaluating Punitive Damages: Lifting The Haze From The Bmw/State Farm Guideposts, Steven L. Chanenson, John Y. Gotanda

University of Michigan Journal of Law Reform

In this Article, Professors Chanenson and Gotanda propose that courts treat comparable maximum criminal or civil legislative fines as a presumptive due process limit on punitive damage awards. The Article reviews the manner in which courts have implemented the three-guidepost framework for constitutional review of punitive awards laid out by the Supreme Court in BMW of North America, Inc. v. Gore and in State Farm Mutual Automobile Insurance Co. v. Campbell. Finding that courts have struggled to articulate a coherent rationale and methodology for review of such awards, the authors propose a greater reliance on the third guidepost of …


Threatening An Irrational Breach Of Contract, Oren Bar-Gill, Omri Ben-Shahar Jan 2004

Threatening An Irrational Breach Of Contract, Oren Bar-Gill, Omri Ben-Shahar

Articles

When circumstances surrounding the contract change, a party might consider breach a more attractive option than performance. Threatening breach, this party may induce the other party to modify the original agreement. The contract law doctrine of modification determines whether and when these modifications are enforceable. To promote social welfare as well as the interests of the threatened party, the law should enforce modifications if and only if the modification demand is backed by a credible threat to breach. This paper argues that credibility is not a function of pecuniary interests alone. A decision to breach can be motivated also by …


The Indulgence Of Reasonable Presumptions: Federal Court Contractual Civil Jury Trial Waivers, Joel Andersen Oct 2003

The Indulgence Of Reasonable Presumptions: Federal Court Contractual Civil Jury Trial Waivers, Joel Andersen

Michigan Law Review

Large institutions such as banks, franchisers, international companies, and lessors distrust juries' ability to properly resolve disputes and award reasonable damages. As a result, these and other actors have attempted to limit juries' potential influence on the contracts to which they are parties. They have done so through contractual jury trial waiver clauses in these agreements. The Seventh Amendment to the Constitution guarantees the jury trial right. Whether the right is determined to exist in an individual instance is a matter of federal common law, which merely preserves the jury trial right as it existed when the Amendment was adopted …


The Genie And The Bottle: Collateral Sources Under The September 11th Victim Compensation Fund, Kenneth S. Abraham, Kyle D. Logue Jan 2003

The Genie And The Bottle: Collateral Sources Under The September 11th Victim Compensation Fund, Kenneth S. Abraham, Kyle D. Logue

Articles

The September 11th Victim Compensation Fund of 2001 (the Fund) was part of legislation enacted just eleven days after the terrorist attacks of September 11th in the wake of extraordinary national loss. It is possible, therefore, that the Fund will always be considered an urgent and unique response to the unprecedented events of September 11th. On that view, the character of the Fund will have little longterm policy significance. It is equally possible, however, that the enactment of the Fund will prove to be a seminal moment in the history of tort and compensation law. The Fund adopts a new …


A Taxing Settlement, Hanoch Dagan, James J. White Jan 2003

A Taxing Settlement, Hanoch Dagan, James J. White

Articles

The following essay is based on the talk "Government, Citizens, and Injurious Industries: A Case Study of the Tobacco Litigation," delivered by Hanoch Dagan last May to the Detroit Chapter of the International Association of Jewish Lawyers and Jurists, and on the article "Governments, Citizens, and Injurious Industries," by Dagan and James J. White, '62, which appeared in 75.2 New York University Law Review 254-428 (May 2000). The authors hold conflicting view on the underlying issue of this topic: tobacco company product liability. Professor Dagan holds the position that tobacco companies are liable for harm done by their products; Professor …


Researching Remedies In Intellectual Property Actions Involving Computer Technology: A Research Guide, Daniel N. Kassabian Oct 2002

Researching Remedies In Intellectual Property Actions Involving Computer Technology: A Research Guide, Daniel N. Kassabian

Michigan Telecommunications & Technology Law Review

The purpose of this research guide is not to answer the question "What remedies are available to an owner of computer related technology whose rights have been infringed?" but to provide a methodology by which a legal practitioner can find the answer to this question. This guide sets forth materials and methods of research that can be used for an inquiry that is broad in scope, such as researching which legal scheme's remedial component best suits a client's technology, but that are also capable of being used for a narrow or limited inquiry, such as looking for specific remedies available …


Pliability Rules, Abraham Bell, Gideon Parchomovsky Oct 2002

Pliability Rules, Abraham Bell, Gideon Parchomovsky

Michigan Law Review

In 1543, the Polish astronomer, Nicolas Copernicus, determined the heliocentric design of the solar system. Copernicus was motivated in large part by the conviction that Claudius Ptolemy's geocentric astronomical model, which dominated scientific thought at that time, was too incoherent, complex, and convoluted to be true. Hence, Copernicus made a point of making his model coherent, simple, and elegant. Nearly three and a half centuries later, at the height of the impressionist movement, the French painter Claude Monet set out to depict the Ruen Cathedral in a series of twenty paintings, each presenting the cathedral in a different light. Monet's …


The Case Against Employment Tester Standing Under Title Vii And 42 U.S.C. § 1981, Michael Bowling Oct 2002

The Case Against Employment Tester Standing Under Title Vii And 42 U.S.C. § 1981, Michael Bowling

Michigan Law Review

In 1964, Congress passed comprehensive legislation aimed at eradicating discrimination in employment, public accommodations, public facilities, public schools, and federal benefit programs. Title VII of this Act directed its aim specifically at stamping out prejudice in employment. Four years later, the Supreme Court resurrected the provisions of § 1 of the Civil Rights Act of 1866, which, among other things, protects citizens, regardless of race or color, in their right to "make and enforce [employment] contracts." Together, Title VII and § 1981 serve as the primary legal bases for challenging racially discriminatory actioris by private employers. More than thirty years …


Optimal Delegation And Decoupling In The Design Of Liability Rules, Ian M. Ayres, Paul M. Goldbart Oct 2001

Optimal Delegation And Decoupling In The Design Of Liability Rules, Ian M. Ayres, Paul M. Goldbart

Michigan Law Review

Calabresi and Melamed began a scholarly revolution by showing that legal entitlements have two readily distinguishable forms of protection: property rules and liability rules. These two archetypal forms protect an entitlement holder's interest in markedly different ways - via deterrence or compensation. Property rules protect entitlements by trying to deter others from taking. Liability rules, on the other hand, protect entitlements not by deterring but by trying to compensate the victim of nonconsensual takings. Accordingly, the compensatory impetus behind liability rules focuses on the takee's welfare - making sure the sanction is sufficient to compensate the takee. The deterrent impetus …


Seeking Redress For Gender-Based Bias Crimes- Charting New Ground In Familiar Legal Territory, Julie Goldscheid, Risa E. Kaufman Jan 2001

Seeking Redress For Gender-Based Bias Crimes- Charting New Ground In Familiar Legal Territory, Julie Goldscheid, Risa E. Kaufman

Michigan Journal of Race and Law

This Essay will analyze how courts have defined gender-motivation, focusing on the Civil Rights Remedy cases decided before the law was struck down, in an attempt to cull from those cases the standards federal courts have used to assess gender-motivation. The article will first provide an overview of existing and proposed laws that offer some form of redress for gender-motivated crimes. It will then analyze cases decided under the Civil Rights Remedy, focusing on two key issues that have arisen as policymakers struggle with whether and how gender-based bias crimes fit in the rubric of hate crimes legislation. The first …


Pleading Under Section 11 Of The Securities Act Of 1933, Krista L. Turnquist Jun 2000

Pleading Under Section 11 Of The Securities Act Of 1933, Krista L. Turnquist

Michigan Law Review

The Securities Act of 1933 ("Securities Act") requires full and fair disclosure of the nature of securities sold in interstate and foreign commerce. Section 11 of the Securities Act prohibits false or misleading registration statements. It also provides buyers a private remedy for false or misleading statements against any signer of the registration statement, any partner or director of the issuer, any professional involved in preparing or certifying the statement, and any underwriter. The rule appears simple: if there is a material misstatement or omission in the registration statement, the buyer may sue the seller. Courts disagree, however, over how …


Law And Regret, Eric A. Posner May 2000

Law And Regret, Eric A. Posner

Michigan Law Review

Professor Farnsworth's1 topic is what he calls the "law of regretted decisions," those laws "that apply when you change your mind and reverse a decision" (p. ix). One finds such laws across many doctrinal divisions. Contract law influences the decision to change one's mind about keeping a promise. Tort law influences the decision to change one's mind after starting to rescue another person. The law of wills influences the decision to change one's mind about the distribution of one's assets among heirs. Farnsworth believes there are general principles that underlie the law of regretted decisions. Although there are some "anomalies," …


Governments, Citizens, And Injurious Industries, Hanoch Dagan, James J. White Jan 2000

Governments, Citizens, And Injurious Industries, Hanoch Dagan, James J. White

Articles

In this Article, Professors Hanoch Dagan and James White study the most recent challenge raised by mass torts litigation: the interference of governments with the bilateral relationship between citizens and injurious industries. Using the tobacco settlement as their case study, Dagan and White explore the important benefits and the grave dangers of recognizing governments' entitlement to reimbursement for costs they have incurred in preventing or ameliorating their citizens' injuries. They further demonstrate that the current law can help capture these benefits and guard against the entailing risks, showing how subrogation law can serve as the legal foundation of the governments' …


The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein Jan 2000

The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein

Articles

A long and distinguished line of law-and-economics articles has established that in many circumstances fully compensatory expectation damages are a desirable remedy for breach of contract because they induce both efficient performance and efficient breach. The expectation measure, which seeks to put the breached-against party in the position she would have been in had the contract been performed, has, therefore, rightly been chosen as the dominant contract default rule. It does a far better job of regulating breach-or-perform incentives than its leading competitors-the restitution measure, the reliance measure, and specific performance. This Essay does not directly take issue with the …


The Role Of "Stories" In Civil Jury Judgments, Reid Hastie Dec 1999

The Role Of "Stories" In Civil Jury Judgments, Reid Hastie

University of Michigan Journal of Law Reform

A brief review of psychological theories of juror decision making is followed by an introduction to "explanation-based" theories of judgment. Prior empirical studies of explanation-based processes in juror decision making are then reviewed. An original empirical study of jurors' judgments concerning liability for punitive damages is presented to illustrate the explanation-based approach to civil decisions.


Jury Trials In The Heartland, Stephen E. Chappelear Dec 1999

Jury Trials In The Heartland, Stephen E. Chappelear

University of Michigan Journal of Law Reform

In this Article, Stephen Chappelear draws on his study of civil jury trials in the Franklin County Court of Common Pleas in Columbus, Ohio. He concludes that trial by jury results in justice. Despite the popular belief that juries are modern day Robin Hoods, empirical data suggests that their verdicts are lower than commonly believed.


Decisionmaking About General Damages: A Comparison Of Jurors, Judges, And Lawyers, Roselle L. Wissler, Allen J. Hart, Michael J. Saks Dec 1999

Decisionmaking About General Damages: A Comparison Of Jurors, Judges, And Lawyers, Roselle L. Wissler, Allen J. Hart, Michael J. Saks

Michigan Law Review

Placing important decisions in the hands of the civil jury - made up of ordinary citizens untrained in the law - has long been criticized. For example, Erwin Griswold, law school dean and Solicitor General of the United States, asked, "Why should anyone think that 12 persons brought in from the street, selected in various ways, for their lack of general ability, should have any special capacity for deciding controversies between persons?" And Jerome Frank, law professor, aggressive legal realist, and judge, argued that juries are uncertain, capricious, and unpredictable, ignorant and prejudiced, poor factfinders, gullible, and incapable of following …


Deterrence And Damages: The Multiplier Principle And Its Alternatives, Richard Craswell Jun 1999

Deterrence And Damages: The Multiplier Principle And Its Alternatives, Richard Craswell

Michigan Law Review

One purpose of fines and damage awards is to deter harmful behavior. When enforcement is imperfect, however, so the probability that any given violation will be punished is less than 100%, the law's deterrent effect is usually thought to be reduced. Thus, it is often said that the ideal penalty (insofar as deterrence is concerned) equals the harm caused by the violation multiplied by one over the probability of punishment. For example, if a violation faces only a 25% (or one-in-four) chance of being punished, on this view the optimal penalty would be four times the harm caused by the …


The Standing Of The United States: How Criminal Prosecutions Show That Standing Doctrine Is Looking For Answers In All The Wrong Places, Edward A. Hartnett Jun 1999

The Standing Of The United States: How Criminal Prosecutions Show That Standing Doctrine Is Looking For Answers In All The Wrong Places, Edward A. Hartnett

Michigan Law Review

The Supreme Court insists that Article III of the Constitution requires a litigant to have standing in order for her request for judicial intervention to constitute a "case" or "controversy" within the jurisdiction of a federal court; it also insists that the "irreducible constitutional minimum" of standing requires (1) that the litigant suffer an "injury in fact"; (2) that the person against whom the judicial intervention is sought have caused the injury; and (3) that the requested judicial intervention redress the injury. The requisite injury in fact, the Court repeatedly declares, must be "personal," "concrete and particularized," and "actual or …


On Recovery In Tort For Pure Economic Loss, Eileen Silverstein May 1999

On Recovery In Tort For Pure Economic Loss, Eileen Silverstein

University of Michigan Journal of Law Reform

Pure economic loss is not considered a recoverable harm in tort law. Professor Silverstein asks, "Why not?"


In Defense Of The Good Samaritan, Hanoch Dagan Mar 1999

In Defense Of The Good Samaritan, Hanoch Dagan

Michigan Law Review

In the year 1880, in Dalles City, Oregon, a large and valuable load of lumber fell into the Columbia River and was about to be carried away by the river's waters. Since Savage, the owner of this lumber, was absent from the scene, Glenn - who, at that time, was doing construction work for Savage - "furnished help and did service" in saving the lumber "from being washed away and lost." Seven years later, the Supreme Court of Oregon rejected Glenn's claim that Savage owed him "the reasonable value" of his services as well as of the services of the …