Legal Remedies Commons^™

Making Sense Of Abatement As A Tort Remedy, Anthony J. Sebok

Faculty Articles

Controversy over public nuisance in recent high profile cases invites the question of whether, and to what extent, it is limited by its roots in tort law. This article, which was prepared for the 2023 Clifford Symposium on “New Torts” focuses on causes of action in which the state seeks to enjoin the defendant by requiring that it abate the consequences of the invasion of a public right. In the most controversial of these public nuisance actions, such as lead paint and opioids, the wrongful conduct that is remedied by the injunctive relief has already ceased, and the state does …

Aaron Twerski: Practical Wisdom At Ground Zero, Anthony J. Sebok

Faculty Articles

This Article celebrates Professor. Aaron Twerski’s “practical wisdom” in crafting a solution (with Jim Henderson) to a problem faced by Judge Alvin Hellerstein in the so-called 9/11 First Responder cases. The problem was that Congress did not include these plaintiffs within the Victims Compensation Fund (“VCF”) despite there being every reason to suspect that the interaction of workersman’s compensation law and tort law, if left to operate on their own, would generate a politically unacceptable outcome. Despite his clear misgivings – —expressed decades earlier – —about allowing those who control the workplace to enjoy the benefits of limited liability guaranteed …

Third-Party Releases Under The Bankruptcy Code After Purdue Pharma, Jeanne L. Schroeder, David G. Carlson

Faculty Articles

The biggest bankruptcy case ever (as measured by unsecured claims against a debtor-in-possession) is In re Purdue Pharma, LLC. The bankruptcy court affirmed a plan discharging the Sackler family (equity owners and often officers of Purdue) of all “derivative” claims that belonged to the debtor-in-possession. The settlement was bought for a substantial sum payable over time by the Sacklers. A debtor-in-possession is the sole owner of a derivative claim and has the power to bind all the creditors to a settlement. Under the Bankruptcy Code, a plan discharging derivative claims is confirmable. In fact, as we will, show, a great …

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

Faculty 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 …

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

Faculty 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 …

The Myth Of Personal Liability: Who Pays When Bivens Claims Succeed, James E. Pfander, Alexander A. Reinert, Joanna C. Schwartz

Faculty 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 …

European Legal Development: The Case Of Tort: Comparative Studies In The Development Of The Law Of Tort In Europe, Vol 9, Anthony Sebok

Faculty Articles

This review addresses volumes 7-9 of the series Comparative Studies in the Development of the Law of Torts in Europe, edited by John Bell and David Ibbetson and published by Cambridge University Press.

Alvarez-Machain Ii: The Supreme Court's Reliance On The Non-Self-Executing Declaration In The Senate Resolution Giving Advice And Consent To The International Covenant On Civil And Political Rights, Malvina Halberstam

Faculty Articles

No abstract provided.

The New/Old Law Of Securities Transfer: Calling A “Spade” A “Heart, Diamond, Club Or The Like”, Martin J. Aronstein

Cardozo Law Review

Recent changes in the law of securities transfer might be characterized as trying to put an expanding multi-faceted peg in a round hole. The proverbial round hole, of course, is the traditional negotiable instrument concept that a security is transferred by delivery. The peg is the rapidly developing system of securities issuance and holding practices in which an owner's interest in a security is evidenced by an entry on his account with a broker, bank, clearing corporation, or other intermediary, and the security itself is represented by a piece of paper in the possession of that or another third party, …

Retaliatory Discharge For Workers' Compensation: Do Union Employees Need A State Tort, Scott N. Gelfand

Cardozo Law Review

No abstract provided.

Flypaper Contracts And The Genesis Of Modern Tort, Peter Huber

Cardozo Law Review

No abstract provided.

Hegel And Modern Contract Theory: A Comment On Benson And Rosenfeld, Jay M. Feinman

Cardozo Law Review

No abstract provided.

Unlimitation Of Liability: Vessel Owners And The Bareboat Charter After Baker V. Raymond International, Inc., Victoria M. Bald

Cardozo Law Review

No abstract provided.

Strategic Bankruptcies: Class Actions, Classification & The Dalkon Shield Cases, Sharon Youdelman

Cardozo Law Review

No abstract provided.