Law Commons^™

The Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

San Diego Law Review

This article maintains that, under defined circumstances, a judge should be able to grant an injunction that forbids the defendant’s proved defamation. It analyzes the common law of defamation, the constitutional prior restraint doctrine, the constitutional protection for defamation that stems from New York Times v. Sullivan, and injunctions and their enforcement.

In Near v. Minnesota, the Supreme Court expanded protection for expression by adding an injunction to executive licensing as a prior restraint. Although the Near court circumscribed the injunction as a prior restraint, it approved criminal sanctions and damages judgment for defamation. An injunction that forbids the defendant’s …

Equitable Compensation And The Brickenden “Rule” After Winsta Holding Pte Ltd And Another V Sim Poh Ping And Others, Nicholas Liu

Research Collection Yong Pung How School Of Law

The Brickenden rule, which was thought to provide an exception to the requirement of but-for causation of loss in equitable compensation for breach of fiduciary duty, has recently been rejected by the Singapore High Court in Winsta Holding Pte Ltd and another v Sim Poh Ping and others (Winsta Holding). This case comment suggests that although the substantive position arrived at in Winsta Holding is a sound one, it should not entail a rejection of the Brickenden rule. Properly understood, the Brickenden “rule” is consistent with the requirement that the principal prove but-for causation.

Accessory Disloyalty: Comparative Perspectives On Substantial Assistance To Fiduciary Breach, Deborah A. Demott

Faculty Scholarship

Culpable participation in a fiduciary's breach of duty is independently wrongful. Much about this contingent form of liability is open to dispute. In the United States, well-established general doctrine defines the elements requisite to establishing accessory liability, which is categorized as a tort and often referred to as "aiding-and abetting" liability. What's controversial is how the tort applies to particular categories of actors, most recently investment banks that advise boards of target companies in M&A transactions. In the United Kingdom, in contrast, accessory liability in connection with a breach of trust or fiduciary duty is controversial because the law is …

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 …

A Jurisprudential Divide In U.S. V. Wong & U.S. V. June, Richard J. Peltz-Steele

Faculty Publications

In spring 2015, the U.S. Supreme Court decided two consolidated cases construing the Federal Tort Claims Act, U.S. v. Kwai Fun Wong and U.S. v June, Conservator. The Court majority, 5-4, per Justice Kagan, ruled in favor of the claimants and against the Government in both cases. On the face of the majority opinions, Wong and June come off as straightforward matters of statutory construction. But under the surface, the cases gave the Court a chance to wrestle with fundamental questions of statutory interpretation. The divide in Wong and June concerns the role of the courts vis-à-vis Congress — one …

Compensation Forfeiture: Stacking Remedies Against Disloyal Agents And Employees, George P. Roach

George P Roach

Compensation Forfeiture:

Stacking Remedies Against Disloyal Agents and Employees

Abstract

Four cases against outlaw CEO’s who defrauded their companies are reviewed to show the major impact that compensation forfeiture contributes to the total package of remedies awarded. The dual goals of remedies for breach of fiduciary duty of compensation and deterrence result in multiple remedies, generally including a remedy at law to compensate and a remedy in equity to disgorge any benefit from the breach. For claims that the fiduciary or agent breached her duty of loyalty, a third remedy of compensation forfeiture can be added or ‘stacked’ on top …

Opportunism As Crucible: Rethinking Equity In View Of Reliance Interests And Legal Evolution, John Ehrett

John Ehrett

This Article offers and defends a nuanced definition of opportunism in the context of legal decision-making by differentiating between opportunism in the broad sense and the particularized phenomenon of cognizably malignant opportunism. It subsequently proceeds by developing a normative critique of the case for broader invocation of counter opportunistic equitable remedies, alongside a defense of the reliance and gap-filling functions performed by opportunistic actors. Centrally, I challenge the suggestion that the existence of opportunism in private law warrants a revival of the doctrines of ex post equity. I argue instead that opportunism serves an important structural purpose where the evolution …

Testing The Boundaries Of Family Privacy: The Special Case Of Pediatric Sibling Transplants, Doriane Lambelet Coleman

Faculty Scholarship

A six-year-old girl suffers third-degree burns over eighty percent of her body. Her chance of survival with minimal scarring is said to depend on her identical twin sister’s availability as an organ source. There are other transplant options—including the parents—but because the twins’ skin is “equivalent,” a “sibling transplant” is likely to result in a better medical and aesthetic outcome for the burned twin. Her doctor thus proposes to harvest her healthy sister’s skin on “her backside from her bra line down to the bottom of her buttocks or possibly her thighs.” This procedure would be repeated up to three …

Remedies: A Guide For The Perplexed, Doug Rendleman

Scholarly Articles

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 …

Federalism And Natural Resources Policy [Outline], Robert L. Fischman

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

2 pages.

"Robert L. Fischman, Indiana University School of Law–Bloomington"

"Outline of Presentation"

The Four Phases Of Promissory Estoppel, Eric Mills Holmes

Seattle University Law Review

Case law accurately delineates the four evolutionary stages of promissory estoppel. As an overview, promissory estoppel has evolved in American case law in four developmental stages: (1) Estoppel Phase, consisting initially of “defensive equitable estoppel” to estop contract defenses based on statutes of limitations and the statute of frauds. In the second part of this first phase, courts have extended “estoppel” based on representations of facts to “promissory” representations and enforced the promissory basis of the representation, thereby creating an affirmative theory of relief. Thus, this first phase of promissory estoppel consists of defensive equitable estoppel and offensive equitable estoppel. …

Shipowners' Limitation Of Liability In International Seafaring Disasters, Joseph N. Barker

Vanderbilt Journal of Transnational Law

Adherence to the principle of strict limitation of liability in any area of the law has been out of vogue since the time of Winterbottom v. Wright. This is true whether it be in the area of products liability, master-servant relations, or international air travel. The trend is to remove all limitation on recoveries available under our law for death or injury. An exception is the limitation of liability in maritime disasters. Here, in this watery domain, the narrowness that formerly dominated the field of products liability continues to exist. Some critics condemn such strict limitation as an anachronism in …

Equity -- 1956 Tennessee Survey, Val Sanford

Vanderbilt Law Review

One of the most important characteristics of the administration of justice in Tennessee is the maintenance of separate courts of law and equity. While numerous statutes have been enacted from time to time in an effort to clarify the jurisdiction of the two courts and the boundaries of their respective jurisdictions have been further defined by the courts, nevertheless, cases are still dismissed because they are brought in the wrong court...

Restitution -- 1954 Tennessee Survey, John W. Wade

Vanderbilt Law Review

The title, Restitution, is a comparatively new one. Over a period of many years there grew up separately a number of distinct legal and equitable remedies--quasi-contract, constructive trust, equitable lien, reformation, rescission and others. Only recently has it been perceived that a pervading general principle underlies all of these remedies--the principle that "a person who has been unjustly enriched at the expense of another is required to make restitution to the other." Now that these several types of relief are being classed together it is more generally realized that their composite whole involves a very broad field of the law. …

Federal Procedure--Third-Party Practice--Contbibution Among Joint Or Concurrent Tort-Feasors, Paul M.D. Harrison

Michigan Law Review

A sued B for injuries arising out of a collision between B's taxicab and an automobile driven by C, in which A was riding as a guest passenger. B filed a third-party complaint against C, who denied B's allegation of negligence and counterclaimed against B for personal injuries. A did not amend his complaint to assert a claim against C. The jury found that A's injury was caused by the concurrent negligence of B and C. Judgment for $11,500 was given to A against B, and B was awarded a judgment against …

Means Of Equitable Protection Against Torts, William Q. De Funiak

Kentucky Law Journal

No abstract provided.

Requisites For Equitable Protection Against Torts, William Q. De Funiak

Kentucky Law Journal

No abstract provided.

Damage As Requisite To Rescission For Misrepresentation, Glenn A. Mccleary

Michigan Law Review

The decadence of equity during the nineteenth century has long been an accepted phenomenon. The attempt to make law coincide with morals in the seventeenth and eighteenth centuries was followed in the nineteenth century by the gradual fixing of rules and a consequent stiffening of the legal systems, in which moral principles became lost in a mass of rules derived from such principles. What were once equitable doctrines tended to become mechanical rules. The former strength of equity has been weakened in the various jurisdictions, due in a large measure to the administration of law and equity by the same …

Declaratory Judgments- Extension Of Protection Against Injuries To Personality

Michigan Law Review

The widespread acceptance of the declaratory judgment as a statutory supplement to common law and equitable remedies has raised some searching questions as to the relation between right and remedy in Anglo-American law. The declaratory judgment can operate in anticipation of specific wrongs that would be a basis for ordinary legal or equitable relief. It does not depend for its efficacy on the use of the familiar remedies of law and equity - that is, on damages, specific restitution in replevin and ejectment, and the injunction and specific enforcement in equity. The question may therefore be asked whether the development …

Recent Important Decisions

Michigan Law Review

A collection of recent important court decisions.

Recent Important Decisions

Michigan Law Review

A collection of recent important court decisions.

Equitable Servitudes, George L. Clark

Michigan Law Review

Specific performance of restrictions upon property before Tulk v. Moxhay. Before the decision in Tulk v. MoXhay 2 a contract not to use land in a particular manner was treated by equity courts in the same way as were other negative contracts; if the plaintiff was so injured in the enjoyment of his own land that damages at law did not furnish an adequate remedy, equity would specifically enforce the contract by granting an injunction against the promisor.8 The right thus to control the use of the property in the hands of the promisor can hardly be classified as other …

Preferences Arising From Trust Relations, Harry B. Hutchins

Articles

Where property has once been impressed with a trust, the quality inheres therein and in the proceeds thereof so long as the trust relation continues, provided the rights of a bonafide purchaser for value and without notice do not intervene and identification remain possible. The trust impress, in the absence of a superior equity, at once places property in the preferred class. In equity, trust property belongs to the cesiui que trust, and his claim to it cannot be defeated by the insolvency or dishonesty of the trustee, if it constitutes, in an identifiable form, a part of the trustee's …