Legal Remedies Commons^™

Stays Of Injunctive Relief Pending Appeal: Why The Merits Should Not Matter, Jill Wieber Lens

Florida State University Law Review

In Nken v. Holder, the Supreme Court delineated the standards that must guide a court’s discretion in deciding whether to stay injunctive relief pending appeal A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label it is not surprising to see lower courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win the appeal.

Stays play an important …

Countering The Plaintiff’S Anchor: Jury Simulations To Evaluate Damages Arguments, John Campbell, Bernard Chao, Christopher Robertson, David Yokum

Sturm College of Law: Faculty Scholarship

Numerous studies have shown that the amount of a juror's damages decision is strongly affected by the number suggested by the plaintiffs attorney, independent of the strength of the actual evidence (a psychological effect known as "anchoring"). For scholars and policymakers, this behavior is worrisome for the legitimacy and accuracy of jury decisions, especially in the domain of non-economic damages (e.g., pain and suffering). One noted paper even concluded that "the more you ask for, the more you get. " Others believe that the damage demand must pass the "straight-face" test because outlandishly high demands will diminish credibility and risk …

Fortifying The Rights Of Unauthorized Immigrant Workers: Why Employee-Focused Incentives Under The Nlra Would Help End The Cycle Of Labor Rights Abuse, Caitlin E. Delaney

Journal of Law and Policy

Over the past several decades, there has been an unmistakable tension between labor law and immigration law in the United States. That tension, addressed by the Supreme Court most recently in 2001, still exists for unauthorized immigrant workers who wish to assert their labor rights under the National Labor Relations Act (NLRA). While the Obama Administration has made significant strides in easing the concerns that unauthorized immigrant workers may have before filing an NLRA claim, the unavailability of the back pay remedy and the uncertainty of protection from immigration authorities leave little incentive for such workers to assert their labor …

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

Fashion Forward: The Need For A Proactive Approach To The Counterfeit Epidemic, Casey Tripoli

Brooklyn Journal of International Law

In the last two decades, the overall activity of the counterfeit market has expanded and risen 10,000 percent. This dramatic shift corresponds to growth of the Internet, which has unified the fascination of obtaining cheap, illegitimate goods with the efficiency of a mouse click. With the expected continued inflation of the counterfeit market comes a host of new concerns, namely, how to determine who is responsible for the distribution of these knockoffs, and who should be ordained to limit them in the marketplace. In both the United States and the European Union, however, outdated laws produce a mélange of inadequate …

Standing Up For Their Data: Recognizing The True Nature Of Injuries In Data Breach Claims To Afford Plaintiffs Article Iii Standing, Andrew Braunstein

Journal of Law and Policy

Over the last several years, data breaches have become increasingly more common, due in no small part to the failures of organizations charged with storing and protecting personal data. Consumers whose data has fallen victim to these breaches are more often turning to federal courts in attempts to be made whole from the loss of their information, whether simple credit card information or, as breaches become more sophisticated, social security information, medical and financial records, and more. These consumers are often being turned away from the courthouse, however, due to a failure of many federal courts to find that the …

Section 230 Of The Communications Decency Act: The True Culprit Of Internet Defamation, Heather Saint

Loyola of Los Angeles Entertainment Law Review

This Note highlights the growing concern of Internet defamation and the lack of viable legal remedies available to its victims. Internet defamation is internet speech with the purpose to disparage another’s reputation. At common law, a victim of alleged defamation has the right to file suit against not only the original speaker of the defamatory statements, but the person or entity to give that statement further publication as well. In certain cases even the distributor, such as a newspaper stand, can be held liable for a defamation claim. However, liability due to defamatory speech on the Internet is quite different. …

Prisoners' Rights Lawyers' Strategies For Preserving The Role Of The Courts, Margo Schlanger

Articles

This Article is part of the University of Miami Law Review’s Leading from Below Symposium. It canvasses prisoners’ lawyers’ strategies prompted by the 1996 Prison Litigation Reform Act (“PLRA”). The strategies comply with the statute’s limits yet also allow U.S. district courts to remain a forum for the vindication of the constitutional rights of at least some of the nation’s millions of prisoners. After Part I’s introduction, Part II summarizes in several charts the PLRA’s sharp impact on the prevalence and outcomes of prison litigation, but demonstrates that there are still many cases and situations in which courts continue to …

Trends In Prisoner Litigation, As The Plra Enters Adulthood, Margo Schlanger

Articles

The Prison Litigation Reform Act (PLRA), enacted in 1996 as part of the Newt Gingrich "Contract with America," is now as old as some prisoners. In the year after the statute's passage, some commenters labeled it merely "symbolic." In fact, as was evident nearly immediately, the PLRA undermined prisoners' ability to bring, settle, and win lawsuits. The PLRA conditioned court access on prisoners' meticulously correct prior use of onerous and error-inviting prison grievance procedures. It increased filing fees, decreased attorneys' fees, and limited damages. It subjected injunctive settlements to the scope limitations usually applicable only to litigated injunctions. It made …

Remodeling Federal Medical Malpractice Act: A Possible Improvement To The Affordable Care Act, Nancy Kubasek, Tiffany Durham

Loyola of Los Angeles Law Review

During the debates about healthcare reform, the Congressional Budget Office found that federal medical liability reform could drastically reduce federal budget deficits, yet political and legal scholars could not reach agreement about the best way for the Patient Protection and Affordable Care Act (PPACA) to provide such reform. Instead, provisions were made to fund state level demonstration projects. The law that is considered one of the most successful models to date of conventional tort reform is the Medical Injury Compensation Reform Act of California. This Article exams that legislation and discusses how we might use what can be learned from …

Trial And Settlement: A Study Of High-Low Agreements, J. J. Prescott, Kathryn E. Spier, Albert Yoon

Articles

This article presents the first systematic theoretical and empirical study of highlow agreements in civil litigation. A high-low agreement is a private contract that, if signed by litigants before trial, constrains any plaintiff’s recovery to a specified range. In our theoretical model, trial is both costly and risky. When litigants have divergent subjective beliefs and are mutually optimistic about their trial prospects, cases may fail to settle. In these cases, high-low agreements can be in litigants’ mutual interest because they limit the risk of outlier awards while still allowing mutually beneficial speculation. Using claims data from a national insurance company, …

The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decisions According To Law?, James R. Maxeiner

Georgia State University Law Review

This essay is a critical response to the 2013 commemorations of the75th anniversary of the Federal Rules of Civil Procedure.The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice”with decisions according to law.

By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do. One side promotes rules that control and conclude litigation: e.g.,plausibility pleading, case management, limited discovery, cost indemnity for discovery, and summary …

Qualified Immunity For “Private” § 1983 Defendants After Filarsky V. Delia, Andrew W. Weis

Georgia State University Law Review

In 2012, the Supreme Court addressed private party qualified immunity in the case of Filarsky v. Delia. There, the Court found that both the historical and policy bases for immunity under § 1983 supported extending qualified immunity to outside counsel retained by a municipality. The Court noted that full-time government employees can always seek qualified immunity, so not extending it to individuals employed on some other basis would create “significant line-drawing problems . . . [which could] deprive state actors of the ability to ‘reasonably anticipate when their conduct may give rise to liability . . . .’”

This …

Fulton County Business Court: A Specialized Solution For The Modern Business Community, Megan K. Johnson

Georgia State University Law Review

Business courts or complex commercial divisions are growing in popularity as an effective tool to channel the most complex civil cases into one place before experienced judges with the background and training necessary to resolve the sophisticated issues often presented in those cases. According to North Carolina Business Court Judge Ben F. Tennille, one of the first judicial advocates of the business court model, the evolution of specialty business courts is a necessary response to “‘the rapidly increasing complexity, rate of change and globalization of business.’”

In 2005, Fulton County Superior Court launched a Business Case Division (“Fulton Business Court”) …

Affordable Care Act, Remedy, And Litigation Reform, The, Brendan Maher

Faculty Articles and Papers

The Patient Protection and Affordable Care Act of 2010 (“ACA”) rewrote the law of private health insurance. How the ACA rewrote the law of civil remedies, however, is — to date — a question largely unexamined by scholars. Courts everywhere, including the United States Supreme Court, will soon confront this important issue. This Article offers a foundational treatment of the ACA on remedy. It predicts a series of flashpoints over which litigation reform battles will be fought. It identifies several themes that will animate those conflicts and trigger others. It explains how judicial construction of the statute’s functional predecessor, the …

Closing The Door On The Public Policy Exception To At- Will Employment: How The Washington State Supreme Court Erroneously Foreclosed Wrongful Discharge Claims For Whistleblowers In Cudney V. Alsco, Inc., Laura A. Turczanski

Seattle University Law Review

In 2008, Matthew Cudney was terminated from his employment with ALSCO, Inc. a few weeks after reporting to his supervisor and human resources manager that he observed the branch general manager appearing intoxicated at work and driving away in a company vehicle. Cudney brought an action for wrongful discharge in violation of public policy, claiming that he was terminated in retaliation for reporting the manager’s drinking and driving. In a 5–4 decision, the Washington Supreme Court held that Cudney’s tort claim of wrongful discharge in violation of public policy could not proceed. This Note contends that the Cudney court erred …

Statutes Of Ill Repose And Threshold Canons Of Construction: A Unified Approach To Ambiguity After San Carlos Apache Tribe V. United States, Daniel Lee

Seattle University Law Review

Historically, the San Carlos Apache Tribe depended on the Gila River to irrigate crops and sustain a population of around 14,000 tribe members. The river is also sacred to the Tribe and central to the Tribe’s culture and spirituality. Initially, the federal government had recognized the Tribe’s dependence on the Gila River by reserving, under the Winters doctrine, water rights necessary to support the San Carlos Apache Reservation. Acting as the Tribe’s trustee, the United States entered into the Globe Equity Decree (the Decree), which prevented the San Carlos Apache Tribe from claiming water rights under the Winters doctrine and …

The Future Of Classwide Punitive Damages, Catherine M. Sharkey

University of Michigan Journal of Law Reform

Conventional wisdom holds that the punitive damages class action is susceptiblenot only to doctrinal restraints imposed on class actions but also to constitutionaldue process limitations placed on punitive damages. Thus, it would seem that theprospects for punitive damages classes are even grimmer than for class actionsgenerally.This conventional picture misunderstands the role of punitive damages and, inparticular, the relationship between class actions and punitive damages. It eitherignores or underestimates the distinctly societal element of punitive damages, whichmakes them especially conducive to aggregate treatment. Furthermore, punitivedamages classes offer a solution to the constitutional due process problem of juriesawarding "classwide" damages in a …

The Erosion Of Judicial Immunity, David J. Agatstein

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

The Supreme Court's Take On Immigration In Nken V. Holder: Reaffirming A Traditional Standard That Affords Courts More Time And Flexibility To Decide Immigration Appeals Before Deporting Aliens, Elizaveta Kabanova

Journal of the National Association of Administrative Law Judiciary

No abstract provided.

Punitive Damages And The Drunken Driver, William C. Cooper

Pepperdine Law Review

A discussion of the history and theory of punitive damages which results in advocating their application in a drunk driving context after giving due consideration to the pros and cons of such a sanction. An analysis of case law will reveal the underlying rationale that has motivated certain jurisdictions in applying this severe penal approach in an attempt to deter and curtail the senseless destruction on our nation's highways as well as exploring the impetus behind those other jurisdictions that do not utilize the remedy of punitive damages. The culminating focus is on California's position in this regard. Finally, there …

Bundy V. Jackson: Eliminating The Need To Prove Tangible Economic Job Loss In Sexual Harassment Claims Brought Under Title Vii, Terence J. Bouressa

Pepperdine Law Review

In the case of Bundy v. Jackson, the federal appellate court eliminated the need to prove tangible job loss in claims under Title VII relating to sexual harassment. The holding in Bundy thus promotes the viability of sexual harassment claims under Title VII and deters employers from engaging in subtle sexual harassment as "part of the job." The decision provides a model for the nation to follow in the pursuit of the worthy goal of eliminating sexual harassment in the workplace.

Aviation Litigation: Federal Preemption And The Creation Of A Federal Remedy As A Means To Extinguish The Current Confusion In The Courts, Deborah J. Olsen

Pepperdine Law Review

No abstract provided.

Ruckleshaus V. Sierra Club: Muddying The Waters Of Fee-Shifting In Federal Environmental Litigation , Jeanne A. Taylor

Pepperdine Law Review

In numerous federal environmental statutes, Congress gave plaintiffs the right to recover attorneys' fees when the court finds them "appropriate." In Ruckleshaus v. Sierra Club, the United States Supreme Court held that it was only "appropriate" to grant attorneys' fees when the plaintiff had at least partially prevailed on the merits. The decision ignored both the important role environmental groups play in the interpretation and development of regulatory programs through litigation and the ability of the lower courts to determine when attorneys' fees were "appropriate." The Court, instead, focused on the adversarial nature of such groups and the traditional American …

The Manville Corporation Bankruptcy: An Abuse Of The Judicial Process?, Mark Kunkler

Pepperdine Law Review

Federal bankruptcy law offers a refuge to the honest debtor who is unable to pay his creditor's when his debts are due. Here, the twin aims of bankruptcy law, to give the debtor a fresh start and to provide roughly equal treatment for his! Creditors, are laudably accomplished. But what policies support the use of federal bankruptcy law when the "debtor" is in fact solvent and apparently seeks refuge only to escape liability for the products it manufactures? This comment examines the recent filing of the Manville Corporation for Chapter 11 protection under bankruptcy law with this question in mind.

Liability Cure-All For Insidious Disease Claims, Susan Frankewich

Pepperdine Law Review

Recent decisions handed down in various circuits have created virtual chaos in predicting the liability and damage amounts of insidious disease claims. At least three substantially divergent theories have been adopted to impute liability to the manufacturers of the disease catalysts. Additionally, a new trust fund concept has been used on a limited basis to reconcile differences in court decisions. The trust fund approach is relatively flexible and simple to apply in apportioning damages for insidious disease claims. The author examines and analyzes these three liability theories. In conclusion, the adoption of the trust fund concept is recommended.

Negligent Infliction Of Emotional Distress: New Tort Problem For The Mass Media, Robert E. Drechsel

Pepperdine Law Review

Negligent infliction of emotional distress is becoming an increasingly popular cause of action to be utilized against media defendants. This article begins by tracing the development of the tort and explaining its central elements through cases involving mass media defendants. It studies the relationship between negligent infliction and the torts of libel, invasion of privacy, and intentional infliction of emotional distress. After considering the appropriate balance between expression and emotional tranquility, it is concluded that negligent infliction actions present an ominous threat to the free flow of expression. Sound policy considerations, flowing in part from the first amendment, dictate that …

The Sanction Provision Of The New California Civil Discovery Act, Section 2023: Will It Make A Difference Or Is It Just Another "Paper Tiger"? , Timothy Michael Donovan

Pepperdine Law Review

No abstract provided.

The Changing Face Of Mary Carter Agreements In California: The Aftermath Of Abbott Ford And Proposition 51, Thomas M. Gross

Pepperdine Law Review

No abstract provided.

Check Please: Using Legal Liability To Inform Food Safety Regulation, Alexia Brunet Marks

Publications

Food safety is a hotly debated issue. While food nourishes, sustains, and enriches our lives, it can also kill us. At any given meal, our menu comes from a dozen different sources. Without proper incentives to encourage food safety, microbial pathogens can, and do enter the food source--so much so that according to the Centers for Disease Control and Prevention (CDC), each year roughly one in six Americans (or forty-eight million people) gets sick, 128,000 are hospitalized, and 3,000 die of foodborne diseases. What is the optimal way to prevent unsafe foods from entering the marketplace?

Safety in the food …