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Articles 1 - 13 of 13
Full-Text Articles in Legal Remedies
What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser
What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser
Susan Poser
Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald …
“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman
“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman
Howard M Wasserman
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 …
Understanding Insurance Policies As Noncontracts: An Alternative Approach To Drafting And Construing These Unique Financial Instruments, Christopher French
Understanding Insurance Policies As Noncontracts: An Alternative Approach To Drafting And Construing These Unique Financial Instruments, Christopher French
Christopher C. French
Should Government Be Allowed To Recover The Costs Of Public Services From Tortfeasors?: Tort Subsidies, The Limits Of Loss Spreading, And The Free Public Services Doctrine, Timothy D. Lytton
Should Government Be Allowed To Recover The Costs Of Public Services From Tortfeasors?: Tort Subsidies, The Limits Of Loss Spreading, And The Free Public Services Doctrine, Timothy D. Lytton
Timothy D. Lytton
The free public services doctrine (also known as the municipal cost recovery rule) states that a government entity may not recover from a tortfeasor the costs of public services occasioned by the tortfeasor's wrongdoing. This article traces the history of the doctrine and argues for its elimination. The article criticizes case law supporting the doctrine and raises objections based on fairness, efficiency, and institutional concerns about the proper limits of judicial policy making. The article discusses the implications of eliminating the doctrine for tobacco litigation, gun litigation, and tort reform.
What's Half A Lung Worth? Civil Jurors' Accounts Of Their Award Decision Making, Nicole L. Mott, Valerie P. Hans, Lindsay Simpson
What's Half A Lung Worth? Civil Jurors' Accounts Of Their Award Decision Making, Nicole L. Mott, Valerie P. Hans, Lindsay Simpson
Valerie P. Hans
Jury awards are often criticized as being arbitrary and excessive. This paper speaks to that controversy, reporting data from interviews with civil jurors' accounts of the strategies that juries use and the factors that they consider in arriving at a collective award. Jurors reported difficulty in deciding on awards, describing it as "the hardest part" of jury service and were surprised the court did not provide more guidance to them. Relatively few jurors entered the jury deliberation room with a specified award figure in mind. Once in the deliberation room, however, they reported discussing a variety of relevant factors such …
Whipped By Whiplash? The Challenges Of Jury Communication In Lawsuits Involving Connective Tissue Injury, Valerie P. Hans, Nicole Vadino
Whipped By Whiplash? The Challenges Of Jury Communication In Lawsuits Involving Connective Tissue Injury, Valerie P. Hans, Nicole Vadino
Valerie P. Hans
No abstract provided.
Mass Torts And The Rhetoric Of Crisis, John A. Siliciano
Mass Torts And The Rhetoric Of Crisis, John A. Siliciano
John A. Siliciano
No abstract provided.
The Cathedral At Twenty-Five: Citations And Impressions, James E. Krier, Stewart J. Schwab
The Cathedral At Twenty-Five: Citations And Impressions, James E. Krier, Stewart J. 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 paper. 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 …
In Defense Of Implied Injunctive Relief In Constitutional Cases, John F. Preis
In Defense Of Implied Injunctive Relief In Constitutional Cases, John F. Preis
John F. Preis
The Politics Of Corporate Alien Tort Cases, Chimene I. Keitner
The Politics Of Corporate Alien Tort Cases, Chimene I. Keitner
Chimene I Keitner
No abstract provided.
Rough Justice, Alexandra Lahav
Rough Justice, Alexandra Lahav
Alexandra D. Lahav
This Essay offers a new justification for rough justice. Rough justice, as I use the term here, is the attempt to resolve large numbers of cases by using statistical methods to give plaintiffs a justifiable amount of recovery. It replaces the trial, which most consider the ideal process for assigning value to cases. Ordinarily rough justice is justified on utilitarian grounds. But rough justice is not only efficient, it is also fair. In fact, even though individual litigation is often held out as the sine qua non of process, rough justice does a better job at obtaining fair results for …
Reforming Federal Personal Injury Litigation By Incorporation Of The Procedural Innovations Of Scotland And Ireland: An Analysis And Proposal, Daniel H. Erskine
Reforming Federal Personal Injury Litigation By Incorporation Of The Procedural Innovations Of Scotland And Ireland: An Analysis And Proposal, Daniel H. Erskine
Daniel H. Erskine
Federal procedure has embraced the referral of civil cases outside the court system to alternative dispute resolution. This article argues that by utilizing courts to settle cases through civil procedure, courts realize their central role in ensuring the quality of settlements produced through the judicial administration of justice. The purpose of this article is to provide litigants an optional procedure to expeditiously resolve federal personal injury cases. The system proposed in this article incorporates Scottish and Irish civil procedural reforms into a coherent method for judicial officers to declare the settlement value of a personal injury action without referring the …
Satellite Digital Audio Radio Searching For Novel Theories Of Action, Daniel H. Erskine
Satellite Digital Audio Radio Searching For Novel Theories Of Action, Daniel H. Erskine
Daniel H. Erskine
Satellite radio may be becoming increasingly popular, but there is a little known drawback to the technology: it interferes with many existing wireless networks in place, such as cellular telephone service. This article looks at the legal implications that this interference causes and what kind of liability satellite operators like Sirius and XM Radio may face. Erskine includes a detailed description of how satellite radio operates and in turn describes how this operation causes the disruption. He then moves into a discussion of the current law surrounding the technology and different theories of liability, including tort theories. His approach is …