Law Commons^™

The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman

Nathan B. Oman

The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This Article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory …

The Challenge Of Prosecuting Organized Crime In The United States: Procedural Issues, Paul Marcus

Paul Marcus

No abstract provided.

Exercising Environmental Human Rights And Remedies In The United Nations System, Linda A. Malone, Scott Pasternack

Linda A. Malone

No abstract provided.

The Promise Of Brown Forty Years Later: Introduction, Davison M. Douglas

Davison M. Douglas

No abstract provided.

Brief For Amici Curiae Constitutional Law, Federal Courts, Citizen, And Remedies Scholars In Support Of Respondent: Lynch V. Morales-Santana, Judith Resnick, Stephen I. Vladeck, Mier Feder, Muneer I. Ahmad, Erwin Chemerinsky, Gillian E. Metzger, Gerald L. Neuman, Linda Bosniak, Michael C. Dorf, Burt Neuborne, Doug Rendleman, David L. Shapiro, Michael J. Wishnie

Erwin Chemerinsky

None available.

Common Law Punitive Damages: Something For Everyone?, Doug Rendleman

Doug Rendleman

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 …

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

Susan Poser

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 …

Introduction: Fourth Remedies Discussion Forum, David F. Partlett, Russell L. Weaver

Russell L. Weaver

Introduction to the articles in this section...Three of the articles provide an overview on the subject...The next two articles suggest the desirability of a historical approach to tort reform...A couple of articles focus on the problem of statutory damage and appeal bond caps...A couple of articles question the efficacy and legitimacy of prior tort reforms, both legislative and judicial...The last article in this section, Professor Michael Kelly’s What Makes the Collateral Source Rule Different?, analyzes Paul H. Rubin and Joanna M. Sheperd’s working paper on a “correlation between tort reforms and the rate of fatal accidents in the states which …

Grading Patent Remedies: Dependent Claims And Relative Infringement, Daniel Harris Brean

Daniel Harris Brean

Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell

Thomas W. Mitchell

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real …

Book Review Of The Measure Of Injury: Race, Gender, And Tort Law, By Martha Chamallas And Jennifer B. Wriggins, Anne Bloom, Julie Davies

Anne Bloom

No abstract provided.

“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman

Howard M Wasserman

Federal district courts are routinely issuing broad injunctions prohibiting the federal government from enforcing constitutionally invalid laws, regulations, and policies on immigration and immigration-adjacent issues. Styled “nationwide injunctions,” they prohibit enforcement of the challenges laws not only against the named plaintiffs, but against all people and entities everywhere.

The first problem with these injunctions is one of nomenclature. “Nationwide” suggests something about the “where” of the injunction, the geographic scope in which it protects. The better term is “universal injunction,” which captures the real controversy over the “who” of the injunction, as courts purport to protect the universe of all …

Patent Injunctions On Appeal: An Empirical Study Of The Federal Circuit's Application Of Ebay, Christopher B. Seaman, Ryan T. Holte

Christopher B. Seaman

More than ten years after the United States Supreme Court’s landmark decision in eBay v. MercExchange, the availability of injunctive relief in patent cases remains hotly contested. For example, in a recent decision in the long-running litigation between Apple and Samsung, members of the United States Court of Appeals for the Federal Circuit divided sharply on whether an injunction was warranted to prevent Samsung from continuing to infringe several smartphone features patented by Apple. To date, however, nearly all empirical scholarship regarding eBay has focused on trial court decisions, rather than the Federal Circuit. This Article represents the first comprehensive …

Commercial Bribery: Choice And Measurement Within A Remedies Smorgasbord, Doug Rendleman

Doug Rendleman

Searching for the most suitable money remedy for a simple commercial bribe promptly lands a lawyer, judge, professor, student, or researcher in a remedial smorgasbord. De- emphasizing injunctions, commercial bribery offers a spectrum of monetary remedies. The plaintiff has two defendants, the briber and the bribee. He has two major remedies, damages and restitution. The overlapping policies consist of compensating the plaintiff, preventing the defendants’ unjust enrichment, deterring the defendants and others, and punishing the defendants. Courts implement these policies with compensatory damages, restitution, and punitive damages. A bribe can be returned as damages or restitution, a significant distinction. Punishment …

The Need For Self-Imposed Quotas In Academic Employment, Herma Hill Kay

Herma Hill Kay

No abstract provided.

Permanent Injunctions In Patent Litigation After Ebay: An Empirical Study, Christopher B. Seaman

Christopher B. Seaman

More Lessons From The Laboratories: Cy Pres Distributions In Parens Patriae Antitrust Actions Brought By State Attorneys General, Susan Beth Farmer

Susan Beth Farmer

The structure of the article is outlined in the Table of Contents. First, the article introduces a problem - the denial of an effective remedy for consumers overcharged by antitrust conspiracies, then it describes the legislative solution and identifies the unintended consequences that followed. Next, it proposes two alternative means to resolve the newly discovered issue and, finally, structures a proposed test for courts seeking to order the most efficient and effective remedy for consumers in these cases. The article explains that the Hart-Scott-Rodino Antitrust Improvements Act was adopted to fill a gap in antitrust remedies, which had made treble …

Comparative Perspectives On Strategic Remedial Delays, Holning Lau

Holning Lau

Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen

Mark P. Gergen

Both consumer protection and restitution may be casualties in a collision with the constitutional law of standing. Spokeo collects information from the internet and publishes it; however, Spokeo neither verifies the facts nor confirms which same-named person it refers to. Robins alleges that Spokeo violated the Fair Credit Reporting Act by disseminating false information about him. He seeks class certification and up to $1,000 in statutory minimum damages instead of compensatory damages. Spokeo argues that Robins lacks standing because he suffered no “injury in fact,” no “concrete harm.” Statutory minimum recoveries for defendants’ violations of plaintiffs’ individual rights without proof …

Copyright As Contract, Jeffrey L. Harrison

Jeffrey L Harrison

Copyright is essentially a contract between the author and the public with the government acting as the agent of the public. The consideration received by authors is defined by duration and breadth of exclusivity. The consideration for the public is the creation of a "work" that will be available on a limited basis for the life of the author plus 70 years and then available without limit after that. If there were no transaction costs at all, it would be possible to "pay" authors different amounts of exclusivity. Perhaps a greeting card would get one holiday season of exclusivity, if …

Brief Of Restitution And Remedies Scholars As Amici Curiae In Support Of Respondent: Spokeo V. Robins, Doug Rendleman, Douglas Laycock, Mark P. Gergen

Doug Rendleman

Both consumer protection and restitution may be casualties in a collision with the constitutional law of standing. Spokeo collects information from the internet and publishes it; however, Spokeo neither verifies the facts nor confirms which same-named person it refers to. Robins alleges that Spokeo violated the Fair Credit Reporting Act by disseminating false information about him. He seeks class certification and up to $1,000 in statutory minimum damages instead of compensatory damages. Spokeo argues that Robins lacks standing because he suffered no “injury in fact,” no “concrete harm.” Statutory minimum recoveries for defendants’ violations of plaintiffs’ individual rights without proof …

Erisa Preemption And The Case For A Federal Common Law Of Agency Governing Employer-Administrators, Joshua A.T. Fairfield

Joshua A.T. Fairfield

Not available.

Combating Impunity: Some Thoughts On The Way Forward, Naomi Roht-Arriaza

Naomi Roht-Arriaza

Some of the tasks needed to be done by legal scholars and advocates to combat impunity in cases of massive violations of human rights are discussed. Pathways for implementation of these ideas are many and overlapping.

Statutory Damages In Copyright Law: A Remedy In Need Of Reform, Pamela Samuelson, Tara Wheatland

Pamela Samuelson

No abstract provided.

Women Made Whole: How Tort Law Can Change The Lives Of Domestic Violence And Sexual Assault Victims, Sara L. Crewson

Sara L Crewson

Tort law and insurance companies are failing to provide female domestic violence victims with adequate access to civil courts, proper legal mechanisms with which to gain that access, and are far behind the times when compared to other gender-linked crimes like those of rape and sexual assault. The Restatement of Torts (Third) has classified domestic violence as an intentional tort, and most insurance policies will not provide coverage for harms that were committed intentionally. Certain homeowners' insurance policies won't provide coverage if a spouse tries to sue another spouse for harms committed, leaving vulnerable wives unable to seek compensation for …

Agencies, Courts, And The Limits Of Balancing, Daniel A. Farber

Daniel A Farber

Courts have struggled in several very different contexts to determine when a decision maker can consider costs that are not explicitly addressed in the governing statute. This issue arises when agencies decide whether to conduct a rulemaking or what rule to issue after a rulemaking. It also arises when courts decide whether to enjoin a violation of a statute or whether to vacate an administrative rule rather than simply remanding. Judicial opinions point in different directions and often ignore each other.

This Article contends that the same principles should govern judicial and agency discretion to consider costs across all these …

"I Still Live In Guantanamo!" Human Rights Abuses Continue After Detainees Leave Guantanamo, Peter Honigsberg

Peter J Honigsberg

In November 2014, the U.S. government transferred Yemeni national Hussein Al-marfadi, from the Guantanamo Bay, Cuba detention center to the nation of Slovakia. He had never been charged with a crime, and had been cleared for release nearly five years before his transfer to Slovakia. Three months later, in February 2015, the Witness to Guantanamo project (W2G) interviewed Al-marfadi in Zvolen, a town in central Slovakia. Although physically and psychologically scarred from his 12 years of detention, Al-marfadi was an engaging, even-tempered and thoughtful man.

However, when W2G asked Al-marfadi about his life today, his composure and even-tempered tone transformed …

The Right Not To Use In Property And Patent Law, Oskar Liivak, Eduardo M. Peñalver

Oskar Liivak

In Continental Paper Bag Co. v. Eastern Paper Bag Co., the Supreme Court held (1) that patent owners have an absolute right not to practice their patent and (2) that even these nonpracticing patent owners are entitled to the liberal use of injunctive relief against infringers. Both of these holdings have been very important to the viability of patent assertion entities, the so-called patent trolls. In eBay Inc. v. MercExchange, L.L.C., the Supreme Court softened the injunction rule. In this Article, we argue that Congress or the Court should reconsider Continental Paper Bag’s embrace of an absolute right not to …

The Right Not To Use In Property And Patent Law, Oskar Liivak, Eduardo M. Peñalver

Eduardo M. Peñalver

In Continental Paper Bag Co. v. Eastern Paper Bag Co., the Supreme Court held (1) that patent owners have an absolute right not to practice their patent and (2) that even these nonpracticing patent owners are entitled to the liberal use of injunctive relief against infringers. Both of these holdings have been very important to the viability of patent assertion entities, the so-called patent trolls. In eBay Inc. v. MercExchange, L.L.C., the Supreme Court softened the injunction rule. In this Article, we argue that Congress or the Court should reconsider Continental Paper Bag’s embrace of an absolute right not to …

Section 1983 Civil Rights Litigation In The October 2005 Term, Martin Schwartz

Martin A. Schwartz

No abstract provided.