Law Commons^™

The Right To An Effective Remedy For Victims Of Trafficking In Persons: A Survey Of International Law And Policy, Anne T. Gallagher

Anne T Gallagher

Remedies are a critical aspect of the international legal response to trafficking, confirming the status of trafficked persons as victims of crime and victims of human rights abuse. Over the past decade, States and the international community have come to better understand the true consequences of trafficking – an essential prerequisite to consensus on what constitutes ‘effective” and “appropriate’ remedies for trafficking-related harm. There have also been great improvements in the articulation and acceptance of legal obligations owed by States to prevent and respond to such harm. Unfortunately, and despite this important progress, victims of trafficking very rarely receive the …

Is Chapter 15 Universalist Or Territorialist? Empirical Evidence From United States Bankruptcy Court Cases, Jeremy Leong

Jeremy Leong

No abstract provided.

Making Wto Remedies Work For Developing Nations: The Need For Class Actions, Phoenix X. Cai

Phoenix X. Cai

Making WTO Remedies Work for Developing Nations: The Need for Class Actions

Abstract

Developing nations comprise more than four-fifths of the membership of the World Trade Organization (“WTO”). Yet, they seldom participate in the WTO’s powerful dispute settlement process. This is problematic because the WTO is essentially a self-enforcing system of reciprocal trade rights that relies on proactive monitoring and enforcement by all members. Use of the self-enforcement mechanism – by initiating cases under the WTO’s Dispute Settlement Understanding (“DSU”) - is critical.

There are five primary reasons why developing nations do not actively invoke the DSU. This Article argues …

Trawling For Herring: Lessons In Doctrinal Borrowing And Convergence, Jennifer E. Laurin

Jennifer E. Laurin

The Supreme Court’s 2009 decision in Herring v. United States has prompted both criticism and puzzlement concerning the source, meaning, and implications of the new culpability-based framework that it announced for the Fourth Amendment exclusionary rule. This Article proposes that Herring may be better understood not solely by reference to the exclusionary rule precedents to which the majority opinion claims fidelity, but rather in the context of the important and largely unexamined influence that constitutional tort doctrine has had in shaping exclusionary rule jurisprudence. That influence has been driven by the interrelated processes of borrowing and convergence – the former, …

Remedies Without Rights? : Reparations And Esc Rights In The Inter-American System, Iris T. Figueroa

Iris T Figueroa

This Note provides a summary of the remedies awarded in economic and social rights cases before the Inter-American Court. It argues that the Court's jurisprudence in this area has been characterized by a refusal to acknowledge violations of these rights while at the same time awarding a broad array of reparations to plaintiffs. Based on this trend, suggestions are offered to legal practitioners in order to bring about greater coherence in the Court's jurisprudence as well as improved enforcement of economic and social rights in the region.

Measuring Business Damages In Fraudulent Inducement Cases, George P. Roach

George P Roach

Measuring Business Damages In Fraudulent Inducement Cases Abstract A cause of action for fraudulent inducement provides for expectancy damages and punitive damages, as well as legal fees and mental anguish in some statutory claims, prompting the Texas Supreme Court to express concern that fraudulent inducement can overwhelm other claims such as breach of contract. Litigation relating to the measure of damages for fraudulent inducement has resulted in a substantial number of cases in which juries, trial courts and courts of appeal are over-ruled or reversed. For example, in the last 30 years, more than two-thirds of the Texas Supreme Court’s …

How Should Lawyers Handle The Unintended Disclosure Of Possibly Privileged Information?, James M. Fischer

James M. Fischer

The inadvertently sent email that contains opposing counsel’s settlement strategy, the opposing party’s client opinion letter negligently included in a discovery response, and the opposing party’s work papers taken by a whistle blowing client all share a common theme – the materials were not intended to be disclosed by the opposing party to the recipient lawyer. Notwithstanding the similarities, case law, commentary, and ethics opinions have tended to treat the issues as separate. This separation has not, however, helped lawyers who are subjected to conflicting and inconsistent opinions as to how they should respond in situations when they have received …

Restoring Tradition: The Inapplicability Of Tva V. Hill's Endangered Species Act Injunctive Relief Standard To Preliminary Injunctive Relief Of Non-Federal Actors, Brandon M. Middleton

Brandon M Middleton

While traditional equitable analysis requires the balancing of harms to affected parties and the assessment of the public interest when considering preliminary injunctive relief, courts have largely declined to do so in Endangered Species Act litigation. This unique approach stems from the Supreme Court’s landmark 1978 Endangered Species Act decision, TVA v. Hill. More recent Supreme Court decisions, however, suggest that TVA should not be read so broadly, and that the traditional approach to preliminary injunctions offers no exception. This article examines the development of the TVA preliminary injunctive relief approach in the lower courts. It then discusses why this …

Restoring Equipoise To Child Welfare, Rebecca Aviel

Rebecca Aviel

Since the Supreme Court’s widely criticized decision in DeShaney v. Winnebago County Dept. of Social Services, the principle that the Constitution affords no relief for a social worker’s failure to prevent harm to a child has been described as a “staple of our constitutional law.” Whatever might be said about this principle on its own terms, it produces very troubling incentives for social workers who may still face constitutional tort liability when they act affirmatively to intervene in troubled families -- the unjustified removal of a child from her parents’ custody, after all, is the sort of infringement proscribed by …

Special Incentives To Sue, Margaret H. Lemos

Margaret H. Lemos

In an effort to strengthen private enforcement of federal law, Congress regularly employs plaintiff-side attorneys’ fee shifts, damage enhancements, and other mechanisms that promote litigation. Standard economic theory predicts that these devices will increase the volume of suit by private actors, which in turn will bolster enforcement and encourage more voluntary compliance with the law. This Article challenges the conventional wisdom. I use empirical evidence to demonstrate that special incentives to sue do not dependably generate more litigation. More crucially, when those incentives do work, they often trigger a judicial backlash against the very rights that Congress sought to promote. …

International Law And Domestic Political Coalitions: The Grand Theory Of Compliance With International Law, Joel P. Trachtman

Joel P Trachtman

Compliance with international law is always dependent upon a domestic political decision to engage in the behavior that constitutes compliance. This article articulates the importance of the interdependence between home state domestic politics and foreign state domestic politics in determining compliance. International legal commitments allow the formation of domestic coalitions between those who will benefit by their own state’s compliance with the international legal rule in question, and those who will benefit from other states’ compliance with the international legal rule. The theory developed in this paper is based on established approaches to international relations in the political science literature, …

The Roles Of Acceleration, David Hahn

David Hahn

Acceleration clauses are found in most debt instruments. Upon the occurrence of predetermined triggering event, acceleration makes a creditor's future claim due and payable. While debt covenants have been analyzed extensively in the academic literature, the role of acceleration has been overlooked. This paper examines the role of acceleration clauses and maintains that they play a critical role in debt financing. The paper argues that the prime role of acceleration is to perfect a complex set of governance mechanisms within the corporate setting. This governance role is comprised of three parts. First, acceleration is a complementary measure that supports debt …

Of Dinosaurs And Birds: The Second Circuit’S “Forum Rule” As An Unwarranted Attack On Plaintiffs’ Employment Discrimination Class Action Attorneys’ Fee Petitions, Patrick F. Madden, Shanon J. Carson

Patrick F. Madden

No abstract provided.

Failed Synallagmatic Contracts : Appraisal Of The Maxim "The Party Who Has Control And Can Insure Against The Loss Should Shoulder The Risk", Aimite Jorge

Aimite Jorge

The current position in South African law on enrichment situations arising from "failed agreements" is that "if you have received a performance in terms of a contract which subsequently fails for whatever reason, you give it back if you still have it; if you cannot give it back, you are absolved, unless you were culpable in relation to the loss". Daniel Visser, however, challenges this approach and proposes a new one in his recently published book, Unjustified Enrichment (2008). This article evaluates both this position and the newly suggested approach and it argues that in cases of failed synallagmatic contracts …

Legal Engineering In Israeli Law: Codification And Unification Of The Law Of Remedies, Dr. Yehuda Adar

Yehuda Adar Dr.

Legal engineering is the process of designing, constructing and finally implementing means to influence the development of a legal system. In Israel, a relatively young legal system, the concepts of legal engineering and comparative law are deeply interconnected. This interconnection is best reflected in the area of private law. The development of this area of the law, almost since the very inception of the State of Israel, has been characterized by a careful and attentive examination of foreign legal regimes, national and supra-national alike. This was done with the explicit intention of benefiting from the wisdom and experience of older, …

Should "Substitute" Private Attorneys General Enforce Public Environmental Actions? Balancing The Costs And Benefits Of The Contingency-Fee Environmental Special Counselor Arrangement, Julie E. Steiner

Julie E. Steiner

There is developing phenomenon of quasi-privatized environmental enforcement occurring on behalf and in the name of governments by entrepreneurial attorneys who substitute in place of the public enforcers and derive professional payment from a contingent fee withdrawn from the public’s environmental damage award. This Article addresses the question of whether governments should permit private attorneys to handle these “substitute environmental special counsel” enforcement arrangements. In so doing, the Article weighs the arrangement’s costs and benefits from the standpoint of whether it maximizes the deterrence and restorative compensation goals of environmental enforcement.

Governments are often the only entities with standing to …

No Bueno, Buono: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens

David B. Owens

Atop Sunrise Rock in the Mojave Desert sat a Latin Cross. The only problem, for some, was that this land happened to be owned by the federal government. After contentious litigation, the cross was deemed a violation of the Establishment Clause, and the district court issued an injunction forbidding the cross to remain. That judgment became final and unreviewable, but the district court’s subsequent remedial action—declaring invalid Congress’ attempt to sell only a small “donut” of land around the cross—was not. Congress’ interesting end-around spawned further litigation and an order by the district court modifying the injunction despite the fact …

No Bueno, Buono: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens

David B. Owens

Atop Sunrise Rock in the Mojave Desert sat a Latin Cross. The only problem, for some, was that this land happened to be owned by the federal government. After contentious litigation, the cross was deemed a violation of the Establishment Clause, and the district court issued an injunction forbidding the cross to remain. That judgment became final and unreviewable, but the district court’s subsequent remedial action—declaring invalid Congress’ attempt to sell only a small “donut” of land around the cross—was not. Congress’ interesting end-around spawned further litigation and an order by the district court modifying the injunction despite the fact …

The Reasonable Certainty Requirement In Lost Profits Litigation: What It Really Means, Robert M. Lloyd

Robert M Lloyd

This article explains the factors courts consider when determining whether to award damages for lost profits. It contains an extensive review of the case law.