Law Commons^™

The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl

Faculty Publications

"Reversed and remanded." Or "vacated and remanded." These familiar words, often found at the end of an appellate decision, emphasize that an appellate court's conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …

Competitive Harm From Vertical Mergers, Herbert J. Hovenkamp

All Faculty Scholarship

The antitrust enforcement Agencies' 2020 Vertical Merger Guidelines introduce a nontechnical application of bargaining theory into the assessment of competitive effects from vertical acquisitions. The economics of such bargaining is complex and can produce skepticism among judges, who might regard its mathematics as overly technical, its game theory as excessively theoretical or speculative, or its assumptions as unrealistic.

However, we have been there before. The introduction of concentration indexes, particularly the HHI, in the Merger Guidelines was initially met with skepticism but gradually they were accepted as judges became more comfortable with them. The same thing very largely happened again …

Excessive Force: Justice Requires Refining State Qualified Immunity Standards For Negligent Police Officers, Angie Weiss

Seattle University Law Review SUpra

At the time this Note was written, there was no Washington state equivalent of the § 1983 Civil Rights Act. As plaintiffs look to the Washington state courts as an alternative to federal courts, they will find that Washington state has a different structure of qualified immunity protecting law enforcement officers from liability.

In this Note, Angie Weiss recommends changing Washington state's standard of qualified immunity. This change would ensure plaintiffs have a state court path towards justice when they seek to hold law enforcement officers accountable for harm. Weiss explains the structure and context of federal qualified immunity; compares …

How Medicalization Of Civil Rights Could Disappoint, Allison K. Hoffman

All Faculty Scholarship

This essay reflects on Craig Konnoth’s recent Article, Medicalization and the New Civil Rights, which is a carefully crafted and thought-provoking description of the refashioning of civil rights claims into medical rights frameworks. He compellingly threads together many intellectual traditions—from antidiscrimination law to disability law to health law—to illustrate the pervasiveness of the phenomenon that he describes and why it might be productive as a tool to advance civil rights.

This response, however, offers several reasons why medicalization may not cure all that ails civil rights litigation’s pains and elaborates on the potential risks of overinvesting in medical rights-seeking. …

Fee-Shifting Statutes And Compensation For Risk, Maureen S. Carroll

Articles

A law firm that enters into a contingency arrangement provides the client with more than just its attorneys' labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state fee shifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation …

Sister Helen Prejean And The Death Penalty: Decades Of Fighting Capital Punishment, University Marketing And Communications, Helen Prejean

DePaul Download

Sister Helen Prejean has dedicated her life to opposing the death penalty after she witnessed an execution in her home state of Louisiana. Her efforts have sparked a national dialogue on capital punishment and she has helped shape the Catholic Church’s position on the topic. In 2011, she donated her personal archives to the university to help the DePaul community continue to learn from her work. On this episode of DePaul Download, Sister Helen talks about life’s work and what keeps her going.

Competition Wrongs, Nicolas Cornell

Articles

In both philosophical and legal circles, it is typically assumed that wrongs depend upon having one’s rights violated. But within any market-based economy, market participants may be wronged by the conduct of other actors in the marketplace. Due to my illicit business tactics, you may lose profits, customers, employees, reputation, access to capital, or any number of other sources of value. This Article argues that such competition wrongs are an example of wrongs that arise without an underlying right, contrary to the typical philosophical and legal assumption. The Article thus draws upon various forms of business law to illustrate what …

What Do We Remedy?, Nicholas B. Cornell, Paul Miller, John Oberdiek

Book Chapters

This chapter examines the nature of civil wrongs from the perspective of the law of remedies, querying the supposition that remedies are exclusively responsive to primary rights violations and, in turn, the related supposition that a civil wrong is nothing more the violation of a primary right and correlative duty. Here, remedies correct for wrongs, but it is essential to recognize that the nature of a wrong—and, in turn, the selection of an apt or responsive remedy—is not driven exclusively by the nature of the right that was violated by the wrongdoer. This chapter’s analysis is framed as a critique …

The Myth Of Personal Liability: Who Pays When Bivens Claims Succeed, James E. Pfander, Alexander A. Reinert, Joanna C. Schwartz

Articles

In Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. For the last three decades, however, the Court has cited the threat of individual liability and the burden of government indemnification on agency budgets as twin bases for narrowing the right of victims to secure redress under Bivens. In its most recent decisions, Ziglar v. Abbasi and Hernandez v. Mesa, the Court said much to confirm that it now views personal liability less as a feature of the Bivens liability rule than …

Justices Make The Tough-- But Right-- Call In Cross-Border Shooting Case, A. Benjamin Spencer

Popular Media

No abstract provided.

Designing And Enforcing Preliminary Agreements, Albert H. Choi, George Triantis

Articles

Preliminary agreements—variously labeled as memoranda of understanding, letters of intent, term sheets, commitment letters, or agreements in principle—are common in complex business transactions. They document an incomplete set of terms that the parties have agreed upon, while anticipating further negotiation of the remaining provisions. They often create legal obligations, particularly a duty to negotiate in good faith. This duty has been the subject of a substantial number of judicial opinions over the past few decades and yet continues to be regarded as a confusing and unpredictable issue in contract law. Legal scholarship is hamstrung in its analysis of the case …

Preserving The Nationwide National Government Injunction To Stop Illegal Executive Branch Activity, Doug Rendleman

Scholarly Articles

The Trump Administration’s extravagant claims of executive power have focused the federal courts’ attention on separation of powers, judicial review, and equitable jurisdiction to grant broad injunctions that forbid the administration’s violations of the Constitution and federal statutes. Critics question the federal courts’ power to grant broad injunctions that are effective everywhere. These critics maintain, among other things, that the federal courts lack jurisdiction and that broad injunctions improperly affect nonparties and militate against “percolation” of issues in a variety of courts.

This Article examines the critics’ arguments and finds them unconvincing. Accepting the critics’ arguments would rebalance the separation …

Promise Amid Peril: Prea's Efforts To Regulate An End To Prison Rape, Brenda V. Smith

Project on Addressing Prison Rape - Articles

This Article discusses the modest aspirations of the Prison Rape Elimination Act (“PREA”) that passed unanimously in the United States Congress in 2003. The Article posits that PREA created opportunities for holding correctional authorities accountable by creating a baseline for safety and setting more transparent expectations for agencies’ practices for protecting prisoners from sexual abuse. Additionally, the Article posits that PREA enhanced the evolving standards of decency for the Eighth Amendment and articulated clear expectations of correctional authorities to provide sexual safety for people in custody.

Retroactive Adjudication, Samuel Beswick

All Faculty Publications

This Article defends the retroactive nature of judicial lawmaking. Recent Supreme Court judgments have reignited debate on the retroactivity of novel precedent. When a court announces a new rule, does it apply only to future cases or also to disputes arising in the past? This Article shows that the doctrine of non-retroactive adjudication offers no adequate answer. In attempting to articulate a law of non-retroactivity, the Supreme Court has cycled through five flawed frame-works. It has variously characterized adjudicative non-retroactivity as (1) a problem of legal philosophy; (2) a discretionary exercise for balancing competing right and reliance interests; (3) a …

The Rohingya Genocide, Paul Williams, Todd F. Buchwald, Jenny Domino, Rebecca Hamilton, Michael P. Scharf, Meilena Sterio

Articles in Law Reviews & Other Academic Journals

No abstract provided.

Giving Back A Fraudulent Transfer: A Defense To Liability?, David G. Carlson

Articles

In Whitlock v. Lowe (In re Deberry) (5th Cir. 2019), the Fifth Circuit court of appeals found it obvious that if a transferee gives back fraudulently transferred funds (which the debtor then dissipates), the transferee has a complete defense to liability to the transferor’s bankruptcy trustee. This puts the Fifth Circuit at odds with the Sixth and Seventh Circuits, where the prepetition give-back counted as no defense. This article concludes that a more nuanced position should mediate between these extremes, based on an “innocent donee” defense retrieved from Nineteenth Century precedent. The article emphasizes that if bad faith transferees for …

Contracts And Covid-19, Andrew A. Schwartz

Publications

No abstract provided.

The Myth Of Optimal Expectation Damages, Theresa Arnold, Amanda Dixon, Madison Sherrill, Mitu Gulati

Faculty Scholarship

A much-debated question in contract law scholarship is what the optimal measure of damages for breach should be. The casebook answer-drawing from the theory of efficient breach-is expectation damages. This standard answer, which was a major contribution of the law and economics field, has come under attack by theoreticians within that field itself. To shed an empirical perspective on the question, we look at data on the types of damages provisions parties contract/or themselves in international debt contracts. Specifically, we examine issuer call provisions, which are economically equivalent to damages for prepayment, yet not viewed as legally problematic in the …

Breaking The Silence: Why International Organizations Should Acknowledge Customary International Law Obligations To Provide Effective Remedies, Kristina Daugirdas, Sachi Shuricht

Book Chapters

To date, international organizations have remained largely silent about their obligations under customary international law. This chapter urges international organizations to change course, and to expressly acknowledge customary international law obligations to provide effective remedies. Notably, international organizations’ obligations to afford effective remedies need not precisely mirror States’ obligations to do so. Instead, international organizations may be governed by particular customary international law rules. By publicly acknowledging obligations to afford effective remedies, international organizations can influence the development of such particular rules. In addition, by acknowledging obligations to afford effective remedies—and by actually providing effective remedies—international organizations can rebut arguments …

Civil Procedure And Economic Inequality, Maureen Carroll

Articles

How well do procedural doctrines attend to present-day economic inequality? This Essay examines that question through the lens of three doctrinal areas: the “irreparable harm” prong of the preliminary injunction standard, the requirement that discovery must be proportional to the needs of the case, and the due process rights of class members in actions for injunctive relief. It concludes that in each of those areas, courts and commentators could do more to take economic inequality into account.

On Trust, Law, And Expecting The Worst, Elizabeth F. Emens

Faculty Scholarship

This Review has three parts. Part I aims to convey something of the breadth and interest of Hasday’s fascinating new book, foregrounding the role of gender and beginning to touch the subject of trust. Part II delves briefly but widely into the theme of trust, which pervades the book and invites further examination. Part III presents a framework that combines affective trust and epistemic curiosity and applies this framework to illuminate and sort Hasday’s proposals for reform; to critique a recent, dramatic change in the evidentiary treatment of marital confidences; and to devise a novel approach to prenuptial agreements. Throughout, …

The Case Against Equity In American Contract Law, Jody S. Kraus, Robert E. Scott

Faculty Scholarship

The American common law of contracts appears to direct courts to decide contract disputes by considering two opposing points of view: the ex ante perspective of the parties’ intent at the time of formation, and the ex post perspective of justice and fairness to the parties at the time of adjudication. Despite the black letter authority for both perspectives, the ex post perspective cannot withstand scrutiny. Contract doctrines taking the ex post perspective – such as the penalty, just compensation, and forfeiture doctrines – were created by equity in the early common law to police against abuses of the then …