Legal Remedies Commons^™

Law's Credibility Problem, Julia Simon-Kerr

Washington Law Review

Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.

Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …

You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue

Washington Law Review

United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing …

Direct Actions For Emotional Harm: Is Compromise Possible?, Julie A. Davies

Washington Law Review

While most courts and commentators acknowledge that emotional injury resulting from negligence may merit compensation, they share the conviction that some limits must be placed on such claims. They identify two basic policy rationales as the justifications for limiting claims for emotional harm: (1) the desire to ensure that a defendant's liability for negligence is not disproportionate to his or her fault, and (2) the desire to prevent litigation of trivial or fraudulent claims. This Article argues that the two rules most frequently applied by courts to effectuate limitations on recovery—the "zone-of-danger" rule and the "foreseeability-plus-serious-injury" rule—suffer from serious deficiencies. …