Law Commons^™

Restriction Of Tort Remedies And The Constraints Of Due Process: The Right To An Adequate Remedy, Tracy A. Thomas

Akron Law Faculty Publications

In the recent proliferation of tort reform statutes, the dangerous clause of remedial jurisdiction stripping has sneaked into the law. Reminiscent of federal statutes in other areas of the law, these jurisdictional provisions strip courts of all power to award punitive or non-pecuniary damages in excess of legislative limits. Many states have acted to restrict frivolous claims and excessive recoveries by cabining “McTorts” and “runaway juries.” Regardless of the merits of these policy questions, the use of the simple expedient of remedial jurisdiction to accomplish these purposes raises significant concerns. By arbitrarily restricting an individual’s right to a meaningful remedy, …

Restriction Of Tort Remedies And The Constraints Of Due Process: The Right To An Adequate Remedy, Tracy A. Thomas

Tracy A. Thomas

In the recent proliferation of tort reform statutes, the dangerous clause of remedial jurisdiction stripping has sneaked into the law. Reminiscent of federal statutes in other areas of the law, these jurisdictional provisions strip courts of all power to award punitive or non-pecuniary damages in excess of legislative limits. Many states have acted to restrict frivolous claims and excessive recoveries by cabining “McTorts” and “runaway juries.” Regardless of the merits of these policy questions, the use of the simple expedient of remedial jurisdiction to accomplish these purposes raises significant concerns. By arbitrarily restricting an individual’s right to a meaningful remedy, …

The Merger Of Common-Law And Equity Pleading In Virginia, W. Hamilton Bryson

University of Richmond Law Review

No abstract provided.

Price Discrimination With Contract Terms: The Lost Volume Problem, Barry E. Adler, Alan Schwartz

ExpressO

In a common commercial pattern, the seller of a standard product contracts with one buyer and then sells to another at the contract price after the initial buyer breaches. Sellers argue, and courts largely agree, that the seller could have served the contract buyer as well as the later buyer; hence, the seller is entitled to retain a down payment to the extent of, or sue to recover, the profit – price less cost – that it would have realized on the initial sale had that sale been completed. Some courts and many scholars disagree, arguing that resale of the …

Federal Employment Law: Current Problems And A Call For Reform, Joseph Prud'homme

Journal of Race, Gender, and Ethnicity

No abstract provided.

Soboba Band Of Luiseño Indians Settlement Agreement, Soboba Band Of Luiseño Indians Et Al

Native American Water Rights Settlement Project

Settlement Agreement: Soboba Band of Luiseño Indians Settlement Agreement of June 7, 2006, (final signatures Oct. 18, 2008) Parties: Soboba Band of Luiseño Indians, US, Eastern Municipal Water District, Lake Hemet Municipal Water District and Metropolitan Water District of Southern California. The Tribe is entitled to 9K acre-feet annually (afy) as a prior and paramount right. The districts agree to supply the Tribe water to the extent that it is not able to produce that amount. However, the Tribe agrees to limit its exercise of the right to 4,100 afy for 50 years. The Tribe may use water made available …

Five Myths About Antitrust Damages, Robert H. Lande

All Faculty Scholarship

This article examines five common beliefs about antitrust damages and shows they all are untrue.

Myth #1. Antitrust violations give rise to treble damages.

Myth #2. There is "duplication" of antitrust damages because many defendants pay six-fold or more damages.

Myth #3. Courts should go easy on defendants when formulating liability rules or calculating overcharges because the awarded damages from a finding of an antitrust violation are so severe.

Myth #4. The size of the harms caused by antitrust violations, even by such "hardcore" violations as naked cartels, is relatively modest, and criminal penalties resulting from violations are out of …

Re-Thinking Whitbread V. Walley: Liberal Justice And The Judicial Review Of Damages Caps Under Section 7 Of The Charter Of Rights And Freedoms, Jeremy Taylor

Dalhousie Law Journal

This paper advances a theoretically-driven reconstruction of s.7 Charter doctrine, which currently precludes protection for personal injury damages. Proceeding from a standpoint built on deontological strains of tort theory, the author dissects the reasoning in Whitbread v. Walley, the governing authority on the applicability of s. 7 to legislated damages caps. In three stages, the author argues that in the contemporary context, theoretical and doctrinal support for Whitbread is weak. First, when tort rights are theorized non-instrumentally, rights to personal injury damages fall squarely within the irreducible sphere of personal autonomy now protected by s. 7. Second, recent developments, both …

The End Of The Securities Fraud Class Action As We Know It, Richard A. Booth

ExpressO

In this article, I argue that securities fraud class actions (SFCAs) should not be treated as class actions but rather should be treated as derivative actions. In addition, I argue that such actions should be dismissed unless it appears that insiders (including the company itself) have enjoyed gains from trading during the fraud period. Both of these conclusions are based on the fundamental argument that (1) securities law seeks to protect the interests of reasonable investors, (2) reasonable investors diversify, and (3) diversified investors are effectively protected against the supposed financial harms of securities fraud by virtue of being diversified, …

Let The Damages Fit The Wrong: An Immodest Proposal For Reforming Personal Injury Damages, Elaine W. Shoben

Scholarly Works

The modern legislative approach to tort reform has been a piecemeal process of altering single rules rather than reconsidering the fundamental principle of compensatory damages--the goal of making victims whole. When some aspect of damage doctrine has become disfavored, such as joint and several liability, legislatures and sometimes courts have made a change in that one rule. Lawmakers have focused little on the overall remedial scheme in tort and even less on the basic premise of compensatory damages and whether it is still justifiable.

Rather than comment on the wisdom of piecemeal reform, this article questions the premise of compensatory …

Contracting Out Of Article 2: Minimizing The Obligation Of Performance & Liability For Breach, Sarah Howard Jenkins

Faculty Scholarship

No abstract provided.

The Limitations Of Legislatively Imposed Damages Caps: Proposing A Better Way To Control The Costs Of Medical Malpractice, Nancy L. Zisk

Seattle University Law Review

This Article considers whether state damages caps are constitutional and examines recent studies suggesting that damages caps are not achieving their intended goals. Given the mounting evidence against the effectiveness of damages caps and the questions about their constitutional validity, this Article proposes moving away from legislative caps on damages. Instead, this Article argues for a modified market model based on a combination of improved care, which would include improvements in service; better peer review; and, if necessary, legislation which would be designed to protect the confidentiality of peer review, reduce frivolous lawsuits, and regulate insurance rate increases. Part II …

God V. The Mitigation Of Damages Doctrine: Why Religion Should Be Considered A Pre-Existing Condition, Jennifer Parobek

Journal of Law and Health

According to the 2004-2005 United States Census Bureau Statistical Abstract of the United States, Americans identify with at least thirty-five different self-described Christian religious groups. Of those Christian groups, there are at least four that have special tenets regarding medical treatment that are central to their religious beliefs. Together, members of the Jehovah's Witnesses, Church of God, Pentecostal Free Will Baptist Church, and Christian Science Church constitute slightly more than four-and-a-half percent of the United State's total population. . . Unfortunately, even though the First Amendment of the United States Constitution was designed on our founders' beliefs that religious freedom …

Second Best Damage Action Deterrence, Margo Schlanger

Articles

Potential defendants faced with the prospect of tort or tort-like damage actions can reduce their liability exposure in a number of ways. Prior scholarship has dwelled primarily on the possibility that they may respond to the threat of liability by augmenting the amount of care they take.1 Defendants (I limit myself to defendants for simplicity) will increase their expenditures on care, so the theory goes, when those expenditures yield sufficient liability-reducing dividends; more care decreases liability exposure by simultaneously making it less likely that the actors will be found to have behaved tortiously in the event of an accident and …