Law Commons^™

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 …

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

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No abstract provided.

October 1, 2019 Broadcast: 'The Rohingya Genocide', Rebecca Hamilton

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No abstract provided.

Accommodating Competition: Harmonizing National Economic Commitments, Jonathan Baker

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This article shows how the norm supporting governmental action to protect and foster competitive markets was harmonized with economic rights to contract and property during the 19th century, and with the development of the social safety net during the 20th century. It explains why the Constitution, as understood today, does not check the erosion of the entrenched but threatened national commitment to assuring competitive markets.

Civil Rights Remedies In Higher Education: Jurisprudential Limitations And Lost Moments In Time, Lia Epperson

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No abstract provided.

The Icc's Exit Problem, Rebecca Hamilton

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The International Criminal Court (ICC) was never meant to supplant the domestic prosecution of international crimes. And yet the Court is now entering its second decade of operations in four African nations, with no plan for exit in sight. This Article identifies the looming need for the ICC to consider when and how to exit situations in which it is currently active. In addition to the normative concern that a failure to start planning for exit undercuts the Court’s placement within a system of complementarity, the need to consider exit is also driven by a financial imperative. The Court’s caseload …

Remedies Reveals The Seamless Web, Candace Kovacic-Fleischer

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INTRODUCTION: Remedies is a course that consolidates many of the concepts learned in the first year of law school and some from the second. A typical Remedies course will reintroduce principles from constitutional law, compare and contrast torts and contracts, and apply criminal concepts in civil contexts. Teaching Remedies can be both challenging and rewarding. Challenging because it crosses a wide variety of subject areas. Rewarding because it weaves a variety of subject areas into the "seamless web" of the law, eliciting from students an occasional "aha." Early classes in law school tend to separate courses into discrete subject areas, …

A Realist Approach To Copyright Law's Formalities, Michael W. Carroll

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Rejecting the conventional story that formalities in copyright law were abolished by the Berne Convention, this Article demonstrates that privately administered systems of formalities play a significant role in the administration of copyright law worldwide. Indeed, they must because copyright is designed to support a transaction structure which requires rightsholders who seek to attract licensing partners to go through some formal step to identify themselves and the works in which they have a legal or beneficial interest. Canvassing the landscape of mandatory and voluntary public and private systems of formalities, this article argues that: (1) national policymakers retain more policy …

The Secret "Kill List" And The President, Kenneth Anderson

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No abstract provided.

Notes On Borrowing And Convergence, Robert Tsai, Nelson Tebbe

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his is a response to Jennifer E. Laurin, "Trawling for Herring: Lessons in Doctrinal Borrowing and Convergence," 111 Colum. L. Rev. 670 (2011), which analyzes the Supreme Court's resort to tort-based concepts to limit the reach of the Fourth Amendment's exclusionary rule. We press three points. First, there are differences between a general and specific critique of constitutional borrowing. Second, the idea of convergence as a distinct phenomenon from borrowing has explanatory potential and should be further explored. Third, to the extent convergence occurs, it matters whether concerns of judicial administration or political reconstruction are driving doctrinal changes.

Patient Negligence: The Unreasonableness Of Relying On Trust, Song Richardson

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This project initiates a conversation about patient negligence and trust in the medical setting and offers a test to determine whether patient negligence should be considered in litigation. The project examines the line at which a physician’s impermissible conduct should become reasonably obvious to a patient and therefore trigger a reasonable response. Absent a reasonable response by patients, this project considers whether comparative negligence attaches. Goodwin and Richardson argue due diligence, an aspect of loyalty, is treated as a value fiduciaries owe their clients, rather than a reasonable step that clients owe themselves.

In this collaboration, the authors imagine and …

The Phases And Faces Of The Duke Lacrosse Controversy: A Conversation, Angela J. Davis, James E. Coleman Jr, Michael Gerhardt, K.C. Johnson

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No abstract provided.

A New System Of Preventative Detention - Let's Take A Deep Breath, Jennifer Daskal

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Some have argued that the detention center at Guantanamo Bay cannot be closed until the U.S. passes new preventive detention laws that would allow it to detain those who cannot be tried but are considered too dangerous to release. This article rejects these claims, concluding that the existing criminal justice system can adequately deal with those who the U.S. should be seeking to detain. The article also warns of the costs of trying to set up an entirely new system of detention without charge. The article cautions that such a system will negate many of the reputational gains associated with …

The Appropriations Power And Sovereign Immunity, Paul F. Figley

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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 …

Thwarting Ethical Violations With Web Site Disclaimers, Walter Effross

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No abstract provided.

Teaching Restitution, Candace Kovacic-Fleischer

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INTRODUCTION: When I began teaching in 1981, I was assigned two separate Remedies courses to teach during the fall: Equitable Remedies and Legal and Extraordinary Remedies. For the Equitable course, I chose the text Leavell, Love & Nelson, Equitable Remedies, Restitution and Damages (3d ed. 1980) and for the Legal and Extraordinary course, York and Bauman, Remedies (3d ed. 1979). I was not sure what "extraordinary remedies" were if they were not equitable remedies, so I assumed they must be this topic called restitution. Of course, most people refer to equitable remedies as the extraordinary ones, and my two Remedies …

The Liability Of International Arbitrators: A Comparative Analysis And Proposal For Qualified Immunity, Susan Franck

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With the advent of the global economy and the increasing number of international commercial transactions, arbitration has become an important dispute resolution option. Arbitration is traditionally extolled because it helps to resolve commercial disputes economically, confidentially, and finally within a neutral forum.' Additionally, unlike national court judgments, arbitration provides an internationally recognized method for enforcing awards.' As a result of these benefits, arbitration is now the preferred dispute resolution mechanism for international commercial disagreements. Unfortunately, because of perceived misconduct by arbitrators and the risk of party manipulation, the arbitration process has come under increasing attack through civil actions against arbitrators.

Comparative Law In Action: Promissory Estoppel, The Civil Law, And The Mixed Jurisdiction, David Snyder

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No abstract provided.

Withdrawal Of The Reference: Rights, Rules, And Remedies For Unwelcomed Web-Linking, Walter Effross

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No abstract provided.

When Congress Just Says No: Deterrence Theory And The Inadequate Enforcement Of The Federal Election Campaign Act, Michael W. Carroll

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No abstract provided.

The Remedial Problems Of Stallone V. United States And Jenkins V. Missouri, Candace Kovacic-Fleischer

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INTRODUCTION: The remedies section of the Association of American Law Schools decided to hold a panel discussion at its annual meeting in January 1991 on two 1990 Supreme Court cases, Spallone v. United States' and Missouri v. Jenkins, because these cases raise some troubling questions about the implementation of constitutional remedies. Not surprisingly, the State and Local Government Section was also planning a panel discussion about the same cases because they involve federal courts in local governmental decisions. Thus, the two Sections combined their programs into a double, joint session, the proceedings of which are printed here. This article introduces …

Private Information And The Deterrent Effect Of Antitrust Damage Remedies, Jonathan Baker

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No abstract provided.

Applying Restitution To Remedy A Discriminatory Denial Of Partnership, Candace Kovacic-Fleischer

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This article suggests that a plaintiff can bring a state cause of action in restitution, liability in unjust enrichment, as an alternative to a federal cause of action in Title VII if the plaintiff was discriminatorily denied partnership by a firm that paid her a salary, but billed her time by the hour to clients. If the firm earned more than it paid in salary and overhead to the plaintiff, that amount would be defendant’s gain, one of the elements of an action in restitution, and the amount to be disgorged should plaintiff prove the other two elements, that the …

Punitive Conditions Of Prison Confinement: An Analysis Of Pugh V. Locke And Federal Court Supervision Of State Penal Administration Under The Eighth Amendment, Ira P. Robbins, Michael B. Buser

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No abstract provided.