Legal Remedies Commons^™

The Relevance Of Defendants’ Wealth For Forward-Looking, Backward-Looking, And Mixed Accounts Of Tort Damages, Michael Pressman

Chicago-Kent Law Review

No abstract provided.

The Ragged Edge Of Rugged Individualism: Wage Theft And The Personalization Of Social Harm, Matthew Fritz-Mauer

University of Michigan Journal of Law Reform

Every year, millions of low-wage workers suffer wage theft when their employers refuse to pay them what they have earned. Wage theft is both prevalent and highly impactful. It costs individuals thousands each year in unpaid earnings, siphons tens of billions of dollars from low-income communities, depletes the government of necessary resources, distorts the competitive labor market, and causes significant personal harm to its victims. In recent years, states and cities have passed new laws to attack the problem. These legal changes are important. They are also, broadly speaking, failing the people they are supposed to protect.

This Article fills …

Tort Law And Civil Recourse, Mark A. Geistfeld

Michigan Law Review

A Review of Recognizing Wrongs. by John C.P. Goldberg and Benjamin C. Zipursky.

Calculating Compensation Sums For Private Law Wrongs: Underlying Imprecisions, Necessary Questions, And Toward A Plausible Account Of Damages For Lost Years Of Life, Michael Pressman

University of Michigan Journal of Law Reform

The ubiquitous corrective-justice goals of “making a party whole” or “returning a party to the position she was in” are typically understood in monetary terms, and in this context, it is fairly clear what these terms mean. If, as this Article argues, these corrective-justice goals should instead be understood in terms of something that has intrinsic value, such as happiness, various imprecisions come to the fore. This Article identifies and explores these imprecisions and, in so doing, articulates a novel framework that can be used for understanding and systematizing our approach to private law remedies. This is the Article’s first …

Autonomy, Gideon Parchomovsky, Alex Stein

All Faculty Scholarship

Personal autonomy is a constitutive element of all rights. It confers upon a rightholder the power to decide whether, and under what circumstances, to exercise her right. Every right infringement thus invariably involves a violation of its holder’s autonomy. The autonomy violation consists of the deprivation of a rightholder of a choice that was rightfully hers — the choice as to how to go about her life.

Harms resulting from the right’s infringement and from the autonomy violation are often readily distinguishable, as is the case when someone uses the property of a rightholder without securing her permission or, worse, …

The "Art" Of Future Life: Rethinking Personal Injury Law For The Negligent Deprivation Of A Patient's Right To Procreation In The Age Of Assisted Reproductive Technologies, Erika N. Auger

Chicago-Kent Law Review

No abstract provided.

Nevor V. Moneypenny Holdings, Llc: Availability Of Prejudgment Interest For Mixed Maritime Law And Jones Act Claims, Adam S. Bohanan

Ocean and Coastal Law Journal

In maritime personal injury cases, courts have traditionally seen prejudgment interest as part of the compensation due to a prevailing plaintiff. The goal of ensuring the fullest compensation possible has long been recognized as a basic principle of admiralty law. However, federal appellate courts are split over whether to award prejudgment interest on a mixed claim under general maritime law and the Jones Act. This Note explores this issue in Nevor v. Moneypenny Holdings, LLC, which was the first time the question had been raised in the First Circuit. The Fifth and Sixth Circuits have held that because prejudgment interest …

Policing Corporate Conduct Toward Minority Communities: An Insurance Law Perspective On The Use Of Race In Calculating Tort Damages, Dhruti J. Patel

University of Michigan Journal of Law Reform

Courts commonly use U.S. Department of Labor actuarial tables, which explicitly take into account the race of the tort victim, to determine average national wage, work-life expectancy, and life expectancy. This practice has led to wide discrepancies between average damage awards for minority plaintiffs compared to white plaintiffs even if both plaintiffs are similarly situated. While recent legal scholarship criticizes the use of race-based tables and addresses the Equal Protection and incentive concerns such tables present, few courts have deviated from the explicit use of race in determining tort damages.

Though the use of demographic features, such as race, to …

Punishment But Not A Penalty? Punitive Damages Are Impermissible Under Foreign Substantive Law, Paul A. Hoversten

Michigan Law Review

It is a well-established principle that no court applies the penal laws of another sovereign. But what exactly is a penal law? According to Judge Cardozo, a penal law effects “vindication of the public justice” rather than “reparation to one aggrieved.” Although courts have historically treated punitive damages as a purely civil remedy, that attitude has shifted over time. Modern American punitive damages serve not to compensate the plaintiff but to punish the defendant on behalf of the whole community. Therefore, when courts rely on foreign substantive law to impose punitive damages, they arguably violate the well-established principle that no …

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 …

Products Liability And The Internet Of (Insecure) Things: Should Manufacturers Be Liable For Damage Caused By Hacked Devices?, Alan Butler

University of Michigan Journal of Law Reform

While the application of products liability to insecure software is a frequently-discussed concept in academic literature, many commentators have been skeptical of the viability of such claims for several reasons. First, the economic loss doctrine bars recovery for productivity loss, business disruption, and other common damages caused by software defects. Second, the application of design defects principles to software is difficult given the complexity of the devices and recent tort reform trends that have limited liability. Third, the intervening cause of damage from insecure software is typically a criminal or tortious act by a third party, so principles of causation …

The Search For A Grand Unified Theory Of Tort Law., Scott Hershovitz

Reviews

Theorists like to do a lot with a little. And not just because simple theories seem more elegant: we deepen our understanding when we learn that disparate phenomena are linked together. In physics, for example, the theory of thermodynamics showed us the relationship between mechanics and heat. In economics, the theory of the firm showed us that, across industries that look nothing alike, a simple principle helps explain the organization of economic activity. Of course, there is no guarantee that the disparate phenomena we suspect are linked actually are. Particle physicists continue to search for a Grand Unified Theory, which …

Remedies: A Guide For The Perplexed, Doug Rendleman

Doug Rendleman

Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …

The Availability Of Benefit Of The Bargain Expectancy-Based Damages For Buyers Defrauded In California Real Estate Transactions, Laurence A. Steckman, Robert E. Conner, Kris Steckman Taylor

Touro Law Review

No abstract provided.

Too Many Cooks In The Climate Change Kitchen: The Case For An Administrative Remedy For Damages Caused By Increased Greenhouse Gas Concentrations, Benjamin Reese

Michigan Journal of Environmental & Administrative Law

Recent federal and state court decisions have made clear that federal common law claims against emitters of greenhouse gases are not sustainable; however, those same courts seem to have given state common law tort claims the green light, at least if the claims are brought in the state where the polluters are located. This Note contends that such suits are not an adequate remedy for those injured by climate change because they will face nearly insurmountable barriers in state court, and because there are major policy-level drawbacks to relying on state tort law rather than a federal solution. This Note …

Interim Payments And Economic Damages To Compensate Private-Party Victims Of Hazardous Releases, Julie E. Steiner

Marquette Law Review

There is a gap in tort recovery for many hazardous release victims. Hazardous spill victims receive different damage compensation based solely upon the type of hazardous substance released, with oil spill victims benefitting from a number of statutory damage recovery mechanisms that victims of other type of hazardous substance releases do not receive. Specifically, those injured by oil spills receive interim payments and recover for their economic loss. Yet, many victims injured by non-oil hazardous spills will incur economic harm but will not receive compensation because of a prohibition on recovery for economic loss absent accompanying physical injury or private …

Nonmaterial Misrepresentation: Damages, Rescission, And The Possibility Of Efficient Fraud, Emily Sherwin

Emily L Sherwin

Buried in the details of legal doctrine governing misrepresentation is a remedial anomaly that raises some interesting questions about how law should deal with moral wrongs such as fraud. We tend to think of deliberate deception--fraud--as a grave moral wrong. At least, we think of deception as gravely wrong when the deceiver's objective is not to avert harm or spare feelings, but to obtain someone's money or goods. Deception denies the autonomy of the person deceived and undermines the foundation of trust in human interaction. The law, however, does not penalize every instance of fraud. Moreover, the standards governing when …

International Mass Tort Litigation: Forum Non Conveniens And The Adequate Alternative Forum In Light Of The Bhopal Disaster, Stephen L. Cummings

Georgia Journal of International & Comparative Law

No abstract provided.

Compensating The Victims Of Japan’S 3-11 Fukushima Disaster, Eric A. Feldman

All Faculty Scholarship

Japan’s March 2011 triple disaster—first a large earthquake, followed by a massive tsunami and a nuclear meltdown—caused a devastating loss of life, damaged and destroyed property, and left hundreds of thousands of people homeless, hurt, and in need. This article looks at the effort to address the financial needs of the victims of the 3/11 disaster by examining the role of public and private actors in providing compensation, describing the types of groups and individuals for whom compensation is available, and analyzing the range of institutions through which compensation has been allocated. The story is in some ways cause for …

America's (Not So) Golden Door: Advocating For Awarding Full Workplace Injury Recovery To Undocumented Workers, Paul Holdsworth

University of Richmond Law Review

No abstract provided.

Third Party Funding Of Personal Injury Tort Claims: Keep The Baby And Change The Bathwater, Terrence Cain

Chicago-Kent Law Review

In the early 1990s, a period of high-risk lending at high interest rates, a new entrant emerged in civil litigation: the Litigation Finance Company (“LFC”). LFCs advance money to plaintiffs involved in contingency fee litigation. The money is provided on a non-recourse basis, meaning the plaintiff repays the LFC only if she obtains money from the lawsuit through a settlement, judgment, or verdict. If the plaintiff recovers nothing, she will not owe the LFC anything. When she does repay the LFC, however, she could end up paying as much as 280% of the amount advanced by the LFC. As one …

An Exploration Of “Non-Economic” Damages In Civil Jury Awards, Herbert M. Kritzer, Guangya Liu, Neil Vidmar

Faculty Scholarship

Using three primary data sources plus three supplemental sources discussed in an appendix, this paper examines how well non-economic damages could be predicted by economic damages and at how the ratio of non-economic damages to economic damages changed as the magnitude of the economic damages awarded by juries increased. We found a mixture of consistent and inconsistent patterns across our various datasets. One fairly consistent pattern was the tendency for the ratio of non-economic to economic damages to decline as the amount of economic damages increased. Moreover, the variability of the ratio also tended to decline as the amount of …

The Costs Of Changing Our Minds, Nita A. Farahany

Faculty Scholarship

This isn’t quite a draft yet – it’s a concept paper. You’ll see after the first 10 pages a good bit of text in brackets, which are primarily notes for me, but it’ll give you a sense of the content of those sections. I’d like to talk through the concept – the “duty” to mitigate emotional distress damages and how courts have struggled with it, as a foray into a broader dichotomy that I see in a number of areas of law that suggest an implicit value in “cognitive liberty.” This is a smaller version of a broader book project …

Infant Pain And Suffering: The Valuation Dilemma, Peter N. Kalionzes

Pepperdine Law Review

No abstract provided.

Remedies: A Guide For The Perplexed, Doug Rendleman

Scholarly Articles

Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …

Punitive Damages In Product Liability Cases , Mark P. Robinson Jr., Gerald H.B. Kane Jr.

Pepperdine Law Review

No abstract provided.

California Expands Tort Liability Under The Novel Market Share Theory: Sindell V. Abbott Laboratories, N. Denise Taylor

Pepperdine Law Review

The California Supreme Court, in the novel and unprecedented case of Sindell v. Abbott Laboratories, eliminated the plaintiffs burden of identification of a negligent party, and thus the causation requirement, in a multiple party tort action. In the course of this decision, the court adopted the "market share" theory of liability which dictated in Sindell that nonidentifiable defendant-manufacturers of the generic drug DES would be liable for the damages in proportion to their share of business in the market. The author thoroughly examines various theories of recovery, such as "alternative liability," "concert of action" and "enterprise liability," which the court …

Molien V. Kaiser Foundation Hospitals: Negligent Infliction Of Emotional Distress, Michael P. Messina

Pepperdine Law Review

In Molien v. Kaiser Foundation Hospitals, the California Supreme Court recognized that the interest in freedom from negligent infliction of mental distress is a protectable interest, and that an accompanying physical injury need not exist in order to recover damages. The author presents a discussion of the history and policies behind the right to recover from negligently inflicted emotional distress. The author also discusses and analyzes the court's opinion in Molien and agrees with the court that the fears of opening the floodgate of litigation which before Molien precluded recovery, was arbitrary. Finally, the author concludes that the holding is …

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.

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.