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Full-Text Articles in Law
The Court And The Private Plaintiff, Elizabeth Beske
The Court And The Private Plaintiff, Elizabeth Beske
Articles in Law Reviews & Other Academic Journals
Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancient regime.” Thus, the Supreme Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the …
Bivens And The Ancien Régime, Carlos Manuel Vázquez
Bivens And The Ancien Régime, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
In its most recent decision narrowly construing Bivens v. Six Unknown Named Agents of Federal Bureau of Narcotics, the Supreme Court derided Bivens as the product of an “‘ancien regime,’ ... [in which] the Court assumed it to be a proper judicial function to ‘provide such remedies as are necessary to make effective’ a statute’s purpose.” This Essay considers the relevance for Bivens claims of the Court’s shift to a nouveau régime to address the implication of private rights of action under statutes. It first describes and assesses the Court’s reasons for shifting to the nouveau r …
Social Science Evidence In Charter Litigation: Lessons From Carter V Canada (Attorney General), Jocelyn Downie
Social Science Evidence In Charter Litigation: Lessons From Carter V Canada (Attorney General), Jocelyn Downie
Articles, Book Chapters, & Popular Press
In this paper, I offer the reflections of an academic who wandered well out of her wheelhouse. While I have graduate training in both philosophy and law, I am not an expert on the use of social science and humanities evidence in litigation. But, through the course of working on Carter v Canada (Attorney General), I had the opportunity to participate directly in the process of marshalling, preparing, analyzing, and critiquing the evidence. My hope is that, through this paper, I can bring a perspective that may be useful both for practitioners who might (or, I would say, should) be …
Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman
Valuation Averaging: A New Procedure For Resolving Valuation Disputes, Keith Sharfman
Rutgers Law School (Newark) Faculty Papers
In this Article, Professor Sharfman addresses the problem of "discretionary valuation": that courts resolve valuation disputes arbitrarily and unpredictably, thus harming litigants and society. As a solution, he proposes the enactment of "valuation averaging," a new procedure for resolving valuation disputes modeled on the algorithmic valuation processes often agreed to by sophisticated private firms in advance of any dispute. He argues that by replacing the discretion of judges and juries with a mechanical valuation process, valuation averaging would cause litigants to introduce more plausible and conciliatory valuations into evidence and thereby reduce the cost of valuation litigation and increase the …
Constitutional Law -- Due Process Clause -- Third Circuit Holds That $50 Million Punitive Damages Award In Context Of A $48 Million Compensatory Award Is Unconstitutionally Excessive -- Inter Medical Supplies, Ltd. V. Ebi Medical Systems, Inc., 181 F.3d 446 (3d Cir. 1999)., A. Benjamin Spencer
Faculty Publications
In 1996, the Supreme Court, in BMW of North America, Inc. v. Gore, struck down a punitive damages award on the ground that it was "grossly excessive" in violation of the Due Process Clause of the Fourteenth Amendment . Since BMW, many courts have faced the challenge of applying its principles to determine whether punitive damages awards surpass the constitutional limit. Last June, in Inter Medical Supplies, Ltd. v. EBI Medical Systems, Inc., the Third Circuit faced this difficulty when it considered whether a $50 million punitive damages award, granted in conjunction with a $48 million compensatory damages award, was …
Constitutional Limitations On Obtaining Evidence For Scientific Analysis, Paul C. Giannelli
Constitutional Limitations On Obtaining Evidence For Scientific Analysis, Paul C. Giannelli
Faculty Publications
No abstract provided.