Legal Remedies Commons^™

The Constitution As A Source Of Remedial Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Equity’s Constitutional Source, Owen W. Gallogly argues that Article III is the source of a constitutional default rule for equitable remedies—specifically, that Article III’s vesting of the “judicial Power” “in Equity” empowers federal courts to afford the remedies traditionally afforded by the English Court of Chancery at the time of the Founding, and to develop such remedies in an incremental fashion. This Response questions the current plausibility of locating such a default rule in Article III, since remedies having their source in Article III would be available in federal but not state courts and would apply to state-law …

Standing, Equity, And Injury In Fact, Ernest A. Young

Faculty Scholarship

This contribution to the Notre Dame Law Review's annual Federal Courts symposium on "The Nature of the Federal Equity Power" asks what the traditions of equity can tell us about Article III standing. I take as my point of departure the observation by Professors Sam Bray and Paul Miller, in their contribution to the symposium, that equity does not have causes of action as such--or at least not in the same way as actions at law. This is potentially important for standing, as many academic critiques of the Supreme Court's standing jurisprudence have argued that standing should turn on whether …

Aedpa Repeal, Brandon L. Garrett, Kaitlin Phillips

Faculty Scholarship

The Antiterrorism and Effective Death Penalty Act of 1996 (“AEDPA”) dramatically altered the scope of federal habeas corpus. Enacted in response to a domestic terrorism attack, followed by a capital prosecution, and after decades of proposals seeking to limit post conviction review of death sentences, and Supreme Court rulings severely limiting federal habeas remedies, AEDPA was ratified with little discussion or deliberation. The law and politics of death penalty litigation, which had been particularly active since the U.S. Supreme Court invalidated all death penalty schemes in its 1972 ruling in Furman v. Georgia, culminated in restrictions for all federal habeas …

Going Rogue: The Supreme Court's Newfound Hostility To Policy-Based Bivens Claims, Joanna C. Schwartz, Alexander A. Reinert, James E. Pfander

Articles

In Ziglar v. Abbasi, 137 S. Ct. 1843 (2017), the Supreme Court held that a proposed Bivens remedy was subject to an exacting special factors analysis when the claim arises in a “new context.” In Ziglar itself, the Court found the context of the plaintiffs’ claims to be “new” because, in the Court’s view, they challenged “large-scale policy decisions concerning the conditions of confinement imposed on hundreds of prisoners.” Bivens claims for damages caused by unconstitutional policies, the Court suggested, were inappropriate.

This Essay critically examines the Ziglar Court’s newfound hostility to policy-based Bivens claims. We show that an …

Defending "Universal Vacatur" - Nationwide Injunctions For Administrative Law, Michael E. Herz

Online Publications

The nationwide injunction has seized the imagination of courts and law professors in recent years. Not surprisingly, JOTWELL’s pages screens have given it extensive attention. Recent jots have described important work by Samuel Bray (twice), Amanda Frost (also twice), Russell Weaver, and Alan Trammell that attacks, defends, or theorizes nationwide (or “universal”) injunctions. Jack Beermann, in praising Bray and Frost, did have one complaint: “As an administrative law nut, I wish they both grappled more with the meaning of the APA’s instruction that reviewing courts should ‘hold unlawful and set aside’ unlawful agency action.” Mila Sohoni has now filled that …

Privacy Losses As Wrongful Gains, Bernard Chao

Sturm College of Law: Faculty Scholarship

Perhaps nowhere has the pace of technology placed more pressure on the law than in the area of data privacy. Huge data breaches fill our headlines. Companies often violate their own privacy policies by selling customer data, or by using the information in ways that fall outside their policy. Yet, even when there is indisputable misconduct, the law generally does not hold these companies accountable. That is because traditional legal claims are poorly suited for handling privacy losses.

Contract claims fail when privacy policies are not considered contractual obligations. Misrepresentation claims cannot succeed when customers never read and rely on …

New Federalism And Civil Rights Enforcement, Alexander A. Reinert, Joanna C. Schwartz, James E. Pfander

Articles

Calls for change to the infrastructure of civil rights enforcement have grown more insistent in the past several years, attracting support from a wide range of advocates, scholars, and federal, state, and local officials. Much of the attention has focused on federal-level reforms, including proposals to overrule Supreme Court doctrines that stop many civil rights lawsuits in their tracks. But state and local officials share responsibility for the enforcement of civil rights and have underappreciated powers to adopt reforms of their own. This Article evaluates a range of state and local interventions, including the adoption of state law causes of …

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 …

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.

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 …

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 Defamation Injunction Meets The Prior Restraint Doctrine, Doug Rendleman

Scholarly Articles

In Near v. Minnesota, the Supreme Court added the 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 judgments. The prior restraint label resembles a death sentence. This article maintains that such massive retaliation is overkill.

A judge’s injunction that forbids the defendant’s tort of defamation tests Near and prior restraint doctrine because defamation isn’t protected by the First Amendment. Arguing that the anti-defamation injunction has outgrown outright bans under the prior restraint rule and the equitable Maxim that “Equity will not enjoin defamation” …

Accommodating Competition: Harmonizing National Economic Commitments, Jonathan Baker

Articles in Law Reviews & Other Academic Journals

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.

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

All Faculty Scholarship

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in …

Newsroom: Have We Outgrown Brown? 02-06-2018, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Curbing Remedies For Official Wrongs: The Need For Bivens Suits In National Security Cases, Peter Margulies

Law Faculty Scholarship

No abstract provided.

“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman

Faculty Publications

Federal district courts are routinely issuing broad injunctions prohibiting the federal government from enforcing constitutionally invalid laws, regulations, and policies on immigration and immigration-adjacent issues. Styled “nationwide injunctions,” they prohibit enforcement of the challenges laws not only against the named plaintiffs, but against all people and entities everywhere.

The first problem with these injunctions is one of nomenclature. “Nationwide” suggests something about the “where” of the injunction, the geographic scope in which it protects. The better term is “universal injunction,” which captures the real controversy over the “who” of the injunction, as courts purport to protect the universe of all …

Interim Relief: National Report For Canada, Trevor C. W. Farrow, Jonathan Silver

Articles & Book Chapters

Evolving litigation poses many challenges to litigants and their counsel before final adjudication. Canadian courts have fashioned various remedies to meet these challenges in order to preserve and maintain the court's authority to secure a just result.

Statutory Damages And Standing After Spokeo V. Robins, Richard L. Heppner Jr.

Law Faculty Publications

In Spokeo v. Robins, the U.S. Supreme Court held that courts may no longer infer the existence of an injury in fact—and thus constitutional standing—from a statute’s use of a particular remedy, such as a statutory or liquidated damages provision. But Spokeo also directed courts to consider whether Congress intended to identify an intangible harm and elevate it to the status of a “concrete” injury in fact when deciding standing questions. This article argues that courts can and should continue to pay close attention to the structure and language of statutory remedial provisions in making that assessment. The article proposes …

Preclusion Law As A Model For National Injunctions, Suzette M. Malveaux

Publications

No abstract provided.

Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

Publications

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory relief, or damages can …

Suing The President For First Amendment Violations, Sonja R. West

Scholarly Works

On any given day, it seems, President Donald Trump can be found attacking, threatening, or punishing the press and other individuals whose speech he dislikes. His actions, moreover, inevitably raise the question: Do any of these individuals or organizations (or any future ones) have a viable claim against the President for violating their First Amendment rights?

One might think that the ability to sue the President for violation of the First Amendment would be relatively settled. The answer, however, is not quite that straightforward. Due to several unique qualities about the First Amendment and the presidency, it is not entirely …

Can Courts Save Us From Unconstitutional Government Conduct?, John M. Greabe

Law Faculty Scholarship

[Excerpt] "We are living in a troubled time. Across the political spectrum, there is a great deal of concern that government officials have been derelict in honoring their oaths to support and defend the Constitution."

Newsroom: Logan On Trump And Libel Law 01-03-2017, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.

Legal Resources On The Trump Immigration Ban, Center For Constitutional Law

Con Law Center Articles and Publications

This resource bibliography provides legal resources related to the litigation over the presidential immigration ban issued on Jan. 27, 2017. These resources include the executive order, key court decisions, and explanatory commentary.

Class Actions, Civil Rights, And The National Injunction, Suzette M. Malveaux

Publications

This essay is a response to Professor Samuel Bray’s article proposing a blanket prohibition against injunctions that enjoin a defendant’s conduct with respect to nonparties. He argues that national injunctions are illegitimate under Article III and traditional equity and result in a number of difficulties.

This Response argues, from a normative lens, that Bray’s proposed ban on national injunctions should be rejected. Such a bright-line rule against national injunctions is too blunt an instrument to address the complexity of our tripartite system of government, our pluralistic society and our democracy. Although national injunctions may be imperfect and crude forms of …

Partial Takings, Abraham Bell, Gideon Parchomovsky

All Faculty Scholarship

Partial takings allow the government to expropriate the parts of an asset it needs, leaving the owner the remainder. Both vital and common, partial takings present unique challenges to the standard rules of eminent domain. Partial takings may result in the creation of suboptimal, and even unusable, parcels. Additionally, partial takings create assessment problems that do not arise when parcels are taken as a whole. Finally, partial takings engender opportunities for inefficient strategic behavior on the part of the government after the partial taking has been carried out. Current jurisprudence fails to resolve these problems and can even exacerbate them. …

The Modern Class Action Rule: Its Civil Rights Roots And Relevance Today, Suzette M. Malveaux

Publications

The modern class action rule recently turned fifty years old — a golden anniversary. However, this milestone is marred by an increase in hate crimes, violence and discrimination. Ironically, the rule is marking its anniversary within a similarly tumultuous environment as its birth — the civil rights movement of the 1960’s. This irony calls into question whether this critical aggregation device is functioning as the drafters intended. This article makes three contributions.

First, the article unearths the rule’s rich history, revealing how the rule was designed in 1966 to enable structural reform and broad injunctive relief in civil rights cases. …

The Riddle Of Harmless Error Revisited, John M. Greabe

Law Faculty Scholarship

Half a century ago, in Chapman v. California, the Supreme Court imposed on appellate courts an obligation to vacate or reverse criminal judgments marred by constitutional error unless the government demonstrates that the error was harmless beyond a reasonable doubt. But the Court did not explain the juridical status of this obligation or its relation to the federal harmless-error statute, 28 U.S.C. § 2111. In the intervening years, commentators have struggled to make sense of Chapman. Some see it as a constitutional mandate. Others view it as an example of constitutional common law. In THE RIDDLE OF HARMLESS ERROR, written …