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Articles 1 - 21 of 21
Full-Text Articles in Law
The Comparative Nature Of Punishment, Adam Kolber
The Comparative Nature Of Punishment, Adam Kolber
Faculty Scholarship
No abstract provided.
From Feudal Land Contracts To Financial Derivatives: The Treatment Of Status Through Specific Relief, John J. Chung
From Feudal Land Contracts To Financial Derivatives: The Treatment Of Status Through Specific Relief, John J. Chung
Law Faculty Scholarship
No abstract provided.
Bailouts, Bonuses, And The Return Of Unjust Gain, Tracy A. Thomas
Bailouts, Bonuses, And The Return Of Unjust Gain, Tracy A. Thomas
Akron Law Faculty Publications
In March 2009, ailing insurance giant triggered a national outcry when it paid out $165 million in government bailout funds for employee bonus incentives. President Obama called the bonus payments an “outrage” and promised that his administration would “pursue every single legal avenue to block these bonuses and make the taxpayers whole.” One possible answer lies with the remedy of restitution. Restitution, based on unjust enrichment, provides a common law solution that just might work. Unjust enrichment is a remedy directed at the defendant that requires the wrongdoer to return all ill-gotten gains. The goal is to return the defendant …
Maybe Dick Speidel Was Right About Court Adjustment, Robert A. Hillman
Maybe Dick Speidel Was Right About Court Adjustment, Robert A. Hillman
Cornell Law Faculty Publications
In a symposium to honor Professor Richard Speidel, a giant in the field of contract and commercial law for over four decades, this contribution argues that Speidel may have been correct in asserting that, in limited circumstances, court adjustment of disrupted long-term contracts makes sense. I assert that nothing courts have decided or writers have analyzed since the ALCOA case proves that court adjustment is wrong-headed. But, as with so many policy issues, we may never identify the "best" judicial approach to disrupted long-term contracts because resolution depends on too many variables and unknowns.
What Is Specific About Specific Restitution, Colleen P. Murphy
What Is Specific About Specific Restitution, Colleen P. Murphy
Law Faculty Scholarship
No abstract provided.
The Legacy Of The 9/11 Fund And The Minnesota I-35w Bridge-Collapse Fund: Creating A Template For Compensating Victims Of Future Mass-Tort Catastrophes, Michael K. Steenson
The Legacy Of The 9/11 Fund And The Minnesota I-35w Bridge-Collapse Fund: Creating A Template For Compensating Victims Of Future Mass-Tort Catastrophes, Michael K. Steenson
Faculty Scholarship
The purpose of this article is to analyze and compare the 9/11 Fund and the Minnesota bridge-collapse compensation scheme for purposes of illustrating the necessary components of any future compensation schemes legislatures consider adopting in cases involving other catastrophes. This article first sets out the primary issues that must be addressed when considering a compensation scheme. It then examines the choices made in the 9/11 Fund and Minnesota’s bridge-collapse compensation scheme. A brief comparison of the two compensation schemes follows to provide the framework for considering the components of future compensation schemes.
The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz
The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz
Other Publications
As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and we assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, our assumptions are valid and we safely go about our lives. But the regulatory system is now frayed to the point that dangerous products sometimes slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children’s toys have endangered and harmed millions. In these cases, society depends on the state courts as a venue …
The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander
The Story Of Bivens V. Six Unknown-Named Agents Of The Federal Bureau Of Narcotics, James E. Pfander
Faculty Working Papers
In Bivens v. Six Unknown-Named Agents of the Federal Bureau of Narcotics, the Supreme Court recognized the right of an individual to sue federal government officials for a violation of constitutional rights. Drawing on interviews with some of the participants, including Webster Bivens himself and one of the agents who conducted the search, this chapter in the forthcoming book Federal Courts' Stories describes the events that led to the litigation and the complex array of factors that informed the Court's approach to the case. After placing the Bivens decision in context, the chapter evaluates the competing narratives that have grown …
Creating A Paternalistic Market For Legal Rules Affecting The Benefit Promise, Brendan Maher
Creating A Paternalistic Market For Legal Rules Affecting The Benefit Promise, Brendan Maher
Faculty Articles and Papers
Notwithstanding the fact that ERISA was enacted to protect employee benefits, courts have narrowly construed the relief available when benefits are denied, out of concern that a stronger remedy would be too costly for the system to bear. Judges, I argue, are ill-equipped to make this policy judgment. Instead, a regulated, subsidized, paternalistic market should be created to permit the benefit players themselves to choose and price the strength of the remedy they desire. This is a superior means to reach the right level of remedial strength for the most players. To protect against undesirably weak remedial options being selected, …
Annoyancetech Vigilante Torts And Policy, Robert F. Blomquist
Annoyancetech Vigilante Torts And Policy, Robert F. Blomquist
Law Faculty Publications
The twenty-first century has ushered in demand by some Americans for annoyancetech devices—novel electronic gadgets that secretly fend off, punish, or comment upon perceived antisocial and annoying behaviors of others. Manufacturers, marketers, and users of certain annoyancetech devices, however, face potential tort liability for personal and property damages suffered by the targets of this “revenge by gadget.” Federal, state, and local policymakers should start the process of coming to pragmatic terms with the troubling rise in the popularity of annoyancetech devices. This is an area of social policy that cries out for thoughtful and creative legislative solutions.
The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, Angela J. Davis, James E. Coleman Jr, Michael Gerhardt, K.C. Johnson
The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, Angela J. Davis, James E. Coleman Jr, Michael Gerhardt, K.C. Johnson
Articles in Law Reviews & Other Academic Journals
No abstract provided.
Common Law Punitive Damages: Something For Everyone?, Doug Rendleman
Common Law Punitive Damages: Something For Everyone?, Doug Rendleman
Scholarly Articles
Common law punitive damages have some feature that will get everyone's goat: a civil court meting out quasi-criminal punishment; a sanction, punishment, imposed after mere civil procedure; a civil jury stretching imprecise instructions into Robin Hood justice; a private plaintiff receiving a windfall that exceeds any reasonable estimate of loss; and, finally, the Supreme Court wielding the discredited doctrine of substantive due process. This article will examine the preceding fault lines and the countervailing considerations, devoting more attention to substantive due process than the others. It will then turn to Exxon Shipping Co. v. Baker, and include some modest …
The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity, S. I. Strong
Faculty Articles
The Article's overall aim is to determine the international enforceability of international class awards in cases in which the arbitration agreement is silent or ambiguous as to class treatment. Part I therefore describes the current consensus on class arbitration in the United States to lay the groundwork for further discussion. This Part also describes the incidence of class arbitration in other domestic contexts, showing that class arbitration is not as "uniquely American" as opponents have claimed. Part I continues with an overview of international class arbitration to date and identifies the likelihood of international class arbitration's expansion in the future. …
Rethinking Bivens: Legitimacy And Constitutional Adjudication, James E. Pfander, David Baltmanis
Rethinking Bivens: Legitimacy And Constitutional Adjudication, James E. Pfander, David Baltmanis
Faculty Working Papers
The Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics provides an uncertain framework for the enforcement of constitutional rights against the federal government. Rather than recognizing a federal common law right of action for use in every case, the Court views itself as devising actions on a case-by-case basis in light of a range of factors. Critics on all sides question the Court's approach, doubting either its power to fashion federal common law or the tendency of its case-by-case analysis to create gaps in constitutional enforcement. Particularly when compared with actions under …
Regulating Interoperability: Lessons From At&T, Microsoft, And Beyond, Philip J. Weiser
Regulating Interoperability: Lessons From At&T, Microsoft, And Beyond, Philip J. Weiser
Publications
Antitrust law confronted the challenges of regulating interoperability between platforms and applications in both the AT&T and Microsoft cases, but it has yet to mine the series of lessons that can inform how to address this challenge going forward. With the Microsoft consent decree still in place, it may too soon to render a final judgment on the remedy adopted in that case as well as to evaluate more generally whether antitrust law is up to the task of developing the institutional strategies - be it the use of technical committees or reliance on standard setting bodies - for addressing …
Outward Bound To Other Cultures: Seven Guidelines For U.S. Dispute Resolution Trainers, Harold I. Abramson
Outward Bound To Other Cultures: Seven Guidelines For U.S. Dispute Resolution Trainers, Harold I. Abramson
Scholarly Works
This article was inspired by the opportunity to observe a two day negotiation training program' put together by Hamline University School of Law in Rome. It was called "Developing 'Second Generation' Global Negotiation Education." The trainers conducted a high level program for around thirty sophisticated professionals. And over forty scholars observed the training and then spent another two days discussing what was observed. Based on that experience as an observer and my own experience teaching and training abroad, along with additional research, I have identified seven guidelines for U.S. trainers. These guidelines should help trainers reduce any cultural mishaps, prepare …
The Appropriations Power And Sovereign Immunity, Paul F. Figley
The Appropriations Power And Sovereign Immunity, Paul F. Figley
Articles in Law Reviews & Other Academic Journals
Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence - or nonexistence - of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690–1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the …
The End Of Objector Blackmail?, Brian T. Fitzpatrick
The End Of Objector Blackmail?, Brian T. Fitzpatrick
Vanderbilt Law School Faculty Publications
Courts and commentators have long been concerned with holdout problems in the law. This Article focuses on a holdout problem in class action litigation known as objector “blackmail.” Objector blackmail occurs when individual class members delay the final resolution of class action settlements by filing meritless appeals in the hope of inducing class counsel to pay them a side settlement to drop their appeals. It is thought that class counsel pay these side settlements because they cannot receive their fee awards until all appeals from the settlement are resolved. Although several solutions to the blackmail problem have been proposed, both …
Research On The Effectiveness Of The Rhode Island Adult Drug Court, Stephen T. Burke
Research On The Effectiveness Of The Rhode Island Adult Drug Court, Stephen T. Burke
Honors Projects
Investigates the effectiveness of the Rhode Island Adult Drug Court Program (RIADC) by examining the impact of the treatment modalities offered by the Drug Court on paticipants' likelihood of graduating successfully from the Program. Uses data on the seventy-one participants in the Program during the 2005/6 Court cycle, and describes the results in detail.
Bargaining In The Shadow Of Rate-Setting Courts, Daniel A. Crane
Bargaining In The Shadow Of Rate-Setting Courts, Daniel A. Crane
Articles
Judges will tell you that they are comparatively poor rate regulators. The specialized, technical competence and supervisory capacity that public utilities commissions enjoy are usually absent from judicial chambers. Nonetheless, when granting antitrust remedies-particularly remedies for monopolistic abuse of intellectual property-courts sometimes purport to act as rate regulators for the licensing or sale of the defendant's assets. At the outset, we should distinguish between two forms ofjudicial rate setting. In one form, a court (or the FTC in its adjudicative capacity) grants a compulsory license and sets a specific rate as part of a final judgment or an order. The …
Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr
Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr
Articles
Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct …