Law Commons^™

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 …

Fault Lines In Trademark Default Judgments, David S. Welkowitz

Journal of Intellectual Property Law

No abstract provided.

Civil Practice And Procedure, John R. Walker, Jaime B. Wisegarver

University of Richmond Law Review

No abstract provided.

Medical Malpractice And Wrongful Death: Some Lives Are Worth More Than Others, Ralph Peeples, Catherine T. Harris

Ralph Peeples

We examined the outcomes and case characteristics of all the wrongful death lawsuits defended by a medical malpractice insurer in Virginia and North Carolina from 2009 through 2014. We derived our data from the insurer's closed claims files. Our goal was to identify the factors that affected whether compensation was paid, as well as the factors that affected the amount of compensation, when that occurred. Using multivariate analysis, we found that four variables had predictive power: the claims adjuster's assessment of liability, the age of the deceased, the marital status of the deceased, and whether the primary physician-defendant was engaged …

Enduring Doctrine: The Collateral Source Rule In Wisconsin Injury Law, Joseph P. Poehlmann

Marquette Law Review

When the common law collateral source rule first arose in the area of tort law over one hundred years ago, only a minority of individuals maintained health insurance coverage to protect against loss in the event that a negligent actor injured them. Today, however, the vast majority of Americans are covered. Because of this change in the landscape of insurance coverage, many jurisdictions have abrogated or greatly eroded the collateral source rule under the belief that the rule no longer holds a justified role in personal injury litigation. Wisconsin, however, continues to follow the common law form of the rule …

Remedies: A Guide For The Perplexed, Doug Rendleman

Doug Rendleman

Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …

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 …

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

Scholarly Articles

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 …

Loss Of Chance, Probabilistic Cause, And Damage Calculations: The Error In Matsuyama V. Birnbaum And The Majority Rule Of Damages In Many Jurisdictions More Generally, Robert J. Rhee

Robert Rhee

This short commentary corrects an erroneous understanding of probabilistic causation in the loss-of-chance doctrine and the damage calculation method adopted in Matsuyama v. Birnbaum. The Supreme Judicial Court of Massachusetts is not alone. Many other common law courts have made the same error, including Indiana, Nevada, New Mexico, Ohio, and Oklahoma. The consistency in the mistake suggests that the error is the majority rule of damages. I demonstrate here that this majority rule is based on erroneous mathematical reasoning and the fallacy of probabilistic logic.

The Availability Of Benefit Of The Bargain Expectancy-Based Damages For Buyers Defrauded In California Real Estate Transactions, Laurence A. Steckman, Robert E. Conner, Kris Steckman Taylor

Touro Law Review

No abstract provided.

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

Trust And Good-Faith Taken To A New Level: An Analysis Of Inconsistent Behavior In The Brazilian Legal Order, Thiago Luis Sombra

Thiago Luís Santos Sombra

With the changes in the paradigm of voluntarism developed under the protection of liberalism, the bases for legal acts have reached an objective dimension, resulting in the birth of a number of mechanisms of control of private autonomy. Among these mechanisms, we can point out the relevance of those reinforced by the Roman Law, whose high ethical value underlines one of its biggest virtues in the control of the exercise of subjective rights. The prohibition of inconsistent behavior, conceived in the brocard venire contra factum proprium, constitutes one of the concepts from the Roman Law renown for the protection …

Distinguishing The Concept Of Strict Liability For Ultra-Hazardous Activities From Strict Products Liability Under Section 402a Of The Restatement (Second) Of Torts: Two Parallel Lines Of Reasoning That Should Never Meet, Charles E. Cantu

Akron Law Review

The cornerstone of tort law in our Anglo-American system of jurisprudence is based upon three generally accepted principles. The first is that by awarding any individual monetary damages after their injury, we can make them whole, and the second is the concept of the reasonable prudent person. The third, and the focal point of this article, is that liability is imposed, and the corresponding right to recovery is created, not because of the fact that the plaintiff is injured, but because the injury is the result of the defendant’s fault.

Fault, as each first year law student is quick to …

Selecting An Appropriate Damages Expert In A Patent Case; An Examination Of The Current Status Of Daubert, Michael H. King, Steven M. Evans

Akron Law Review

The determination of damages is a critical part of any patent case. As a plaintiff, maximizing awarded damages, whether financial or injunctive, is the ultimate objective of the patent case. As a defendant, minimizing or preventing any awarded damages is the ultimate objective.

Multimillion dollar verdicts in patent cases are now the norm and hundred plus million dollar verdicts are becoming more frequent. A lawyer who fails to devote sufficient time to this critical component of a case does the client a disservice.

There are generally two types of damages in patent cases: lost profits and a reasonable royalty. A …

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

Akron Law Review

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 …

Punitive Compensation, Cortney E. Lollar

Law Faculty Scholarly Articles

Criminal restitution is a core component of punishment. In its current form, this remedy rarely serves restitution's traditional aim of disgorging a defendant's ill-gotten gains. Instead, courts use this monetary award not only to compensate crime victims for intangible losses, but also to punish the defendant for the moral blameworthiness of her criminal action. Because the remedy does not fit into the definition of what most consider "restitution," this Article advocates for the adoption of a new, additional designation for this prototypically punitive remedy: punitive compensation. Unlike with restitution, courts measure punitive compensation by a victim's losses, not a defendant's …

Property Rules And Liability Rules: The Cathedral In Another Light, James Krier, Stewart Schwab

Stewart J Schwab

Ronald Coase's essay on "The Problem of Social Cost" introduced the world to transaction costs, and the introduction laid the foundation for an ongoing cottage industry in law and economics. And of all the law-and-economics scholarship built on Coase's insights, perhaps the most widely known and influential contribution has been Calabresi and Melamed's discussion of what they called "property rules" and "liability rules."' Those rules and the methodology behind them are our subjects here. We have a number of objectives, the most basic of which is to provide a much needed primer for those students, scholars, and lawyers who are …

The Cathedral' At Twenty-Five: Citations And Impressions, James Krier, Stewart Schwab

Stewart J Schwab

It was twenty-five years ago that Guido Calabresi and Douglas Melamed published their article on property rules, liability rules, and inalienability' Calabresi, then a law professor, later a dean, is now a federal judge. Melamed, formerly a student of Calabresi's, is now a seasoned Washington attorney. Their article-which, thanks to its subtitle, we shall call The Cathedral-has had a remarkable influence on our own thinking, as we tried to show in a recent paper2 This is not the place to rehash what we said then, but a summary might be in order. First, we demonstrated that the conventional wisdom about …

To Dollars From Sense: Qualitative To Quantitative Translation In Jury Damage Awards, Valerie P. Hans, Valerie F. Reyna

Valerie P. Hans

This article offers a new multistage account of jury damage award decision making. Drawing on psychological and economic research on judgment, decision making, and numeracy, the model posits that jurors first make a categorical gist judgment that money damages are warranted, and then make an ordinal gist judgment ranking the damages deserved as low, medium, or high. They then construct numbers that fit the gist of the appropriate magnitude. The article employs data from jury decision-making research to explore the plausibility of the model.

Statutory Caps On Punitive Damages: Are They Infringing On Your Rights?, Lynsey Russell

Missouri Law Review

The argument surrounding statutory caps on punitive damages seems to be black and white – either for or against. However, this may not be the case, as a closer evaluation of Missouri history and the instant decision suggest that the issue is more nuanced. First, Part II of this Note summarizes the facts, procedural posture, and holding of Lewellen v. Franklin. Second, Part III explores the legal background of punitive damages and the limitations that have historically been imposed on them. Next, Part IV describes the majority opinion in Lewellen and examines the Supreme Court of Missouri’s rationale. Lastly, Part …

Too Many Cooks In The Climate Change Kitchen: The Case For An Administrative Remedy For Damages Caused By Increased Greenhouse Gas Concentrations, Benjamin Reese

Michigan Journal of Environmental & Administrative Law

Recent federal and state court decisions have made clear that federal common law claims against emitters of greenhouse gases are not sustainable; however, those same courts seem to have given state common law tort claims the green light, at least if the claims are brought in the state where the polluters are located. This Note contends that such suits are not an adequate remedy for those injured by climate change because they will face nearly insurmountable barriers in state court, and because there are major policy-level drawbacks to relying on state tort law rather than a federal solution. This Note …

A Path Toward An Increased Role For The United States In Patent Infringement Litigation, Caroline M. Turner

Chicago-Kent Journal of Intellectual Property

A number of major statutory schemes implicate federal interests but do not provide for explicit authority for the United States to bring lawsuits for damages or to obtain injunctive relief. The patent statutes provide that the patentee may sue in the case of infringement, and court decisions have extended that right to certain licensees. Accordingly, the United States has participated in cases in which it is not a co-patentee or licensee only as an amicus. Yet the government arguably has an interest in intervening in or instituting, as a co-plaintiff, infringement cases involving certain patents. Recent scholarship has renewed attention …

Jurisdiction Over Imports Controversies After The Customs Courts Act Of 1980-Alberta Gas Chemicals, Ltd. V. Celanese Corp., Maija S. Blaubergs

Georgia Journal of International & Comparative Law

No abstract provided.

Concubinage And Union Libre: A Historical Comparison Of The Rights Of Unwed Cohabitants In Wrongful Death Actions In France And Louisiana, Robert F. Taylor

Georgia Journal of International & Comparative Law

No abstract provided.

Impairment Of The Operation Of The Warsaw Convention By Recent Legislative And Judicial Action, Alan N. Sutin

Georgia Journal of International & Comparative Law

No abstract provided.

Interim Payments And Economic Damages To Compensate Private-Party Victims Of Hazardous Releases, Julie E. Steiner

Marquette Law Review

There is a gap in tort recovery for many hazardous release victims. Hazardous spill victims receive different damage compensation based solely upon the type of hazardous substance released, with oil spill victims benefitting from a number of statutory damage recovery mechanisms that victims of other type of hazardous substance releases do not receive. Specifically, those injured by oil spills receive interim payments and recover for their economic loss. Yet, many victims injured by non-oil hazardous spills will incur economic harm but will not receive compensation because of a prohibition on recovery for economic loss absent accompanying physical injury or private …

Can Judges Make Reliable Numeric Judgments? Distorted Damages And Skewed Sentences, Jeffrey J. Rachlinski, Andrew J. Wistrich, Chris Guthrie

Cornell Law Faculty Publications

In a series of studies involving over six hundred trial judges in three countries, we demonstrate that trial judges' civil damage awards and criminal sentences are subject to influences that make them erratic. We found that the presence of misleading numeric reference points (or "anchors") affected judges' decisions in a series of hypothetical cases. Specifically, judges imposed shorter sentences when assigning sentences in months rather than in years; awarded higher amounts of compensatory damages when informed of a cap on damage awards; imposed different sentences depending upon the sequence in which criminal cases were presented to them; and were influenced …

Searching For Remedial Paradigms: Human Rights In The Age Of Terrorism, Frances Howell Rudko

University of Massachusetts Law Review

Nine years after the unprecedented terrorist attacks on September 11, judicial response to various governmental and individual methods of combating terrorism remains deferential and restrained. The courts have heard at least three types of cases brought by advocates for three distinct groups: the alleged perpetrators of terrorism; the victims of terrorist attacks; and third party humanitarian groups. Implicit in the practical question of how to deal effectively with terrorism is the broader consideration which Congress, the President and others must also address: how to respond to the terrorists’ extreme human rights violations without violating international human rights norms and international …

American Punitive Damages Vs. Compensatory Damages In Promoting Enforcement In Democratic Nations Of Civil Judgements To Deter State-Sponsors Of Terrorism, Jeffrey F. Addicott

University of Massachusetts Law Review

Unfortunately, while the United States has established several legal avenues for civil litigation by private citizens of terror attacks against States that sponsor terrorism, a major stumbling block in terms of effectiveness rests in the reality that fellow democratic nations in the international community refuse to honor or domesticate the monetary judgments of American courts. Acknowledging that there are a plethora of political and legal obstacles associated with establishing a workable mechanism for fellow democracies to enforce the “terror” judgments of American courts, one reason that is often raised by critics is the strong objection to the matter of American …

Product Liability Law In Japan: An Introduction To A Developing Area Of Law, Younghee Jin Ottley, Bruce L. Ottley

Georgia Journal of International & Comparative Law

No abstract provided.