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Articles 1 - 30 of 45
Full-Text Articles in Legal Remedies
A Complete Property Right Amendment, John H. Ryskamp
A Complete Property Right Amendment, John H. Ryskamp
ExpressO
The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.
Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh
Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh
Michigan Telecommunications & Technology Law Review
The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to …
Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger
Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger
ExpressO
This article contributes to the broad debate over “adaptive preferences” in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients’ new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one’s enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and …
A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch
A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch
ExpressO
This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared …
Practice What You Preach: How Restorative Justice Could Solve The Judicial Problems In Clergy Sexual Abuse Cases, Diana L. Grimes
Practice What You Preach: How Restorative Justice Could Solve The Judicial Problems In Clergy Sexual Abuse Cases, Diana L. Grimes
Washington and Lee Law Review
No abstract provided.
Finding Nemo: Rediscovering The Virtues Of Negotiability In The Wake Of Enron, Adam J. Levitin
Finding Nemo: Rediscovering The Virtues Of Negotiability In The Wake Of Enron, Adam J. Levitin
ExpressO
Creditors have long understood that any claims they submit for repayment in a bankruptcy might be valid, but subject to subordination in the order of payment of the bankruptcy estate’s limited funds if the creditor behaved inequitably as the debtor failed. A groundbreaking opinion in Enron’s on-going bankruptcy has expanded the practice of equitable subordination far beyond its traditional reach. According to the court, buyers of bankruptcy claims are now subject to subordination, not just for their own conduct, but also for conduct of previous owners of the claims, regardless of whether the conduct related to the claims.
In a …
Reassessing Damages In Securities Fraud Class Actions, Elizabeth C. Burch
Reassessing Damages In Securities Fraud Class Actions, Elizabeth C. Burch
ExpressO
No coherent doctrinal statement exists for calculating open-market damages for securities fraud class actions. Instead, courts have tried in vain to fashion common-law deceit and misrepresentation remedies to fit open-market fraud. The result is a relatively ineffective system with a hallmark feature: unpredictable damage awards. This poses a significant fraud deterrence problem from both a practical and a theoretical standpoint.
In 2005, the Supreme Court had the opportunity to clarify open-market damage principles and to facilitate earlier dismissal of cases without compensable economic losses. Instead, in Dura Pharmaceuticals v. Broudo, it further confused the damage issue by (1) perpetuating the …
Incentive Awards To Class Action Plaintiffs: An Empirical Study, Theodore Eisenberg, Geoffrey P. Miller
Incentive Awards To Class Action Plaintiffs: An Empirical Study, Theodore Eisenberg, Geoffrey P. Miller
Cornell Law Faculty Publications
Incentive awards to representative plaintiffs in class actions have been the focus of recent law reform efforts and have generated inconsistent case law. But little is known about such awards. This study of 374 opinions from 1993 to 2002 finds that awards were granted in about 28 percent of settled class actions. The rate of awards varied by case category as follows: consumer credit actions 59 percent, employment discrimination cases 46 percent, antitrust cases 35 percent, securities cases 24 percent (before the Private Securities Litigation Reform Act of 1995 limited awards), and corporate and mass tort actions less than 10 …
No Relief: Understanding The Supreme Court's Decision In Town Of Castle Rock V. Gonzales Through The Rights/Remedies Framework, Tritia L. Yuen
No Relief: Understanding The Supreme Court's Decision In Town Of Castle Rock V. Gonzales Through The Rights/Remedies Framework, Tritia L. Yuen
American University Law Review
No abstract provided.
How The Other Half Lives (Revisited): Twenty Years Since Midler V. Ford - A Global Perspective On The Right Of Publicity, Alain Lapter
How The Other Half Lives (Revisited): Twenty Years Since Midler V. Ford - A Global Perspective On The Right Of Publicity, Alain Lapter
ExpressO
For celebrities, name and image are, arguably, two of their most valuable assets. From headlining a movie, to starring in a commercial, to endorsing a product, a celebrity’s persona is potentially worth thousands to millions of dollars. However, this intangible commodity’s worth is often siphoned off by those who appropriate a celebrity’s name or image without authorization or remuneration, thus potentially decreasing the property’s value. In order to stifle this unjust enrichment, celebrities greatly desire the absolute right to control the commercial exploitation of their name and likeness.
In this article, I examine the current state of the right of …
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp
ExpressO
This brief comment suggests where the anti-eminent domain movement might be heading next.
The Ineffectiveness Of Capped Damages In Cases Of Employment Discrimination: Solutions Toward Deterrence, Vanessa M. Ruggles
The Ineffectiveness Of Capped Damages In Cases Of Employment Discrimination: Solutions Toward Deterrence, Vanessa M. Ruggles
ExpressO
Although the Civil Rights Act of 1991 helped victims of employment discrimination in a variety of ways, including the authorization of jury trials and the accompanying possibility of compensatory and punitive damages, the caps Congress placed on damages do not serve the purpose of deterrence. Because the caps are based on the number of employees a defendant employer has, the goal of protecting small businesses from exorbitant damages is accomplished. However, because the top category of the caps is “500 or more” employees, giant corporations escape meaningful awards. This article identifies the problem citing specific examples, and proposes several solutions …
Reverse Bifurcation, Dru Stevenson
Reverse Bifurcation, Dru Stevenson
ExpressO
Reverse bifurcation is a trial procedure in which the jury determines damages first, before determining liability. The liability phase of the trial rarely occurs, because the parties usually settle once they know the value of the case. This procedure is already being used in thousands of cases – nearly all the asbestos and Fen-phen cases – but this is the first academic article devoted to the subject. This article explains the history of the procedure and analyzes why it encourages settlements, simplifies jury instructions, and produces better outcomes for the parties.
Treaties In U.S. Courts: Judge Bork's Anti-Originalist Revolution, Kay Graeff, David Sloss
Treaties In U.S. Courts: Judge Bork's Anti-Originalist Revolution, Kay Graeff, David Sloss
ExpressO
Two cases currently pending before the Supreme Court present an opportunity for the Court to resolve a conflict between two competing models of treaty adjudication: the Marshall model and the Bork model. The Marshall model applies a presumption in favor of judicial remedies for violations of individual treaty rights. The Bork model applies a presumption against private enforcement of treaties in U.S. courts.
During the first fifty years of U.S. constitutional history, the Supreme Court consistently applied the Marshallian presumption in favor of judicial remedies. As a judge on the D.C. Circuit in 1984, Robert Bork created the Borkian presumption …
Good Faith, State Of Mind, And The Outer Boundaries Of Director Liability In Corporate Law, Christopher M. Bruner
Good Faith, State Of Mind, And The Outer Boundaries Of Director Liability In Corporate Law, Christopher M. Bruner
ExpressO
The Delaware General Corporation Law was amended in 1986 to permit shareholder-approved exculpatory charter provisions shielding directors from monetary liability for certain types of fiduciary duty breaches, explicitly excepting breaches of the duty of loyalty and conduct not in "good faith" – evidently distinct concepts in the Delaware legislature’s view. This paper examines the development of corporate fiduciary duty doctrine in Delaware leading up to and following this statutory amendment, focusing particularly on the Delaware courts' evolving conception of the meaning and doctrinal status of good faith. Specifically, the paper argues that Delaware's statutory exculpation regime and good faith case …
The Judgment-Proof Society, Stephen G. Gilles
The Judgment-Proof Society, Stephen G. Gilles
Washington and Lee Law Review
No abstract provided.
Significant Association Between Punitive And Compensatory Damages In Blockbuster Cases: A Methodological Primer, Theodore Eisenberg, Martin T. Wells
Significant Association Between Punitive And Compensatory Damages In Blockbuster Cases: A Methodological Primer, Theodore Eisenberg, Martin T. Wells
Cornell Law Faculty Publications
This article assesses the relation between punitive and compensatory damages in a data set, gathered by Hersch and Viscusi (H-V), consisting of all known punitive damages awards in excess of $100 million from 1985 through 2003. It shows that a strong, statistically significant relation exists between punitive and compensatory awards, a relation that replicates similar findings in nearly all other analyses of punitive and compensatory damages. H-V's claim that no significant relation exists between punitive and compensatory awards in these data appears to be an artifact of questionable regression methodology.
Keep It Simple: An Explanation Of The Rule Of No Recovery For Pure Economic Loss, Anita Bernstein
Keep It Simple: An Explanation Of The Rule Of No Recovery For Pure Economic Loss, Anita Bernstein
Faculty Scholarship
No abstract provided.
Introduction: The Plaintiff's Bar, Anita Bernstein, Marc Galanter, Tanina Rostain
Introduction: The Plaintiff's Bar, Anita Bernstein, Marc Galanter, Tanina Rostain
Faculty Scholarship
No abstract provided.
Statutory Caps And Judicial Review Of Damages, Colleen P. Murphy
Statutory Caps And Judicial Review Of Damages, Colleen P. Murphy
Law Faculty Scholarship
No abstract provided.
Why Unify Contract And Tort Remedies? A Reply To Professor Dagan, Dr. Yehuda Adar
Why Unify Contract And Tort Remedies? A Reply To Professor Dagan, Dr. Yehuda Adar
Yehuda Adar Dr.
-This Article is in Hebrew-
The remedies section in the Israeli draft civil code attempts to create a unified law of remedies for the breach of any civil obligation, including originating in tort law and contract law. In his article, "The Risks of Codification: On Over-Coherence and Multiplicity of Remedies", Professor Dagan forcefully criticizes this attempt. The present article demonstrates that the two main criticisms raised by Dagan - against the unification of remedies and against the attempt to fortify the remedial response to breach of civil obligations - are unconvincing, from both a theoretical and a pragmatic point of …
Of The Honey And The Sting – Reflections On Remedies And The Draft Civil Code, Dr. Yehuda Adar
Of The Honey And The Sting – Reflections On Remedies And The Draft Civil Code, Dr. Yehuda Adar
Yehuda Adar Dr.
-This article is in Hebrew-
The remedies section in the Israeli draft civil code reflects a bold – some might say revolutionary – attempt to turn the law of remedies from a set of specific rules appended to various branches of substantive law into a single, autonomous and systematic legal branch. The section, entitled “Remedies for Breach of Obligation,” concludes the fourth part of the proposed code (dealing with obligations) and applies to the violation of any civil obligation, including breach of contract and the commission of torts. This article attempts to provide a broad theoretical framework for the law …
Who's Afraid Of Promissory Estoppel: Charitable Giving In Virginia And The Enforceability Of Promised Gifts, Charlotte Dauphin
Who's Afraid Of Promissory Estoppel: Charitable Giving In Virginia And The Enforceability Of Promised Gifts, Charlotte Dauphin
Richmond Journal of Law and the Public Interest
In May of 2005, the Virginia Museum of Fine Art ("VMFA") announced that collectors James W. and Frances G. McGlothlin intend to bequeath their collection of American realist art. The bequest is valued at $100 million, and includes 33 American paintings, drawings and watercolors as well as a new wing for the museum. However, what happens if the McGlothlins change their mind? Is there any way for the VMFA, or any museum in Virginia, to improve the enforceability of charitable pledges of works of art?
Negligent Infliction Of Emotional Distress: Recovery Is Foreseeable, 39 J. Marshall L. Rev. 1019 (2006), Jeffrey Hoskins
Negligent Infliction Of Emotional Distress: Recovery Is Foreseeable, 39 J. Marshall L. Rev. 1019 (2006), Jeffrey Hoskins
UIC Law Review
No abstract provided.
Hurricane Katrina And The Toxic Torts Implications Of Environmental Injustice In New Orleans, 40 J. Marshall L. Rev. 1 (2006), L. Darnell Weeden
Hurricane Katrina And The Toxic Torts Implications Of Environmental Injustice In New Orleans, 40 J. Marshall L. Rev. 1 (2006), L. Darnell Weeden
UIC Law Review
No abstract provided.
Money As A "Specific" Remedy, Colleen P. Murphy
Money As A "Specific" Remedy, Colleen P. Murphy
Law Faculty Scholarship
No abstract provided.
The Hybrid Class Action As Judicial Spork: Managing Individual Rights In A Stew Of Common Wrong, 39 J. Marshall L. Rev. 231 (2006), Jon Romberg
UIC Law Review
No abstract provided.
In The Service Of Secrets: The U.S. Supreme Court Revisits Totten, 39 J. Marshall L. Rev. 475 (2006), Douglas Kash, Matthew Indrisano
In The Service Of Secrets: The U.S. Supreme Court Revisits Totten, 39 J. Marshall L. Rev. 475 (2006), Douglas Kash, Matthew Indrisano
UIC Law Review
No abstract provided.
Mental Health Courts And Title Ii Of The Ada: Accessibility To State Court Systems For Individuals With Mental Disabilities And The Need For Diversion, S. Elizabeth Malloy
Mental Health Courts And Title Ii Of The Ada: Accessibility To State Court Systems For Individuals With Mental Disabilities And The Need For Diversion, S. Elizabeth Malloy
Faculty Articles and Other Publications
Access to the judicial system, a fundamental right that has paramount importance in our society, can often present obstacles to people with disabilities in a variety of significant ways. Yet Title II mandates that state and local judicial facilities be accessible to individuals with disabilities. Recent shifts in paradigmatic approaches to special populations such as drug offenders and offenders with mental disabilities have lead to the creation of mental health courts specifically designed to address the needs of the persons with mental disabilities in order to avoid incarceration. Early outcomes in states like Ohio suggest mental health courts may better …
The Limitations Of Legislatively Imposed Damages Caps: Proposing A Better Way To Control The Costs Of Medical Malpractice, Nancy L. Zisk
The Limitations Of Legislatively Imposed Damages Caps: Proposing A Better Way To Control The Costs Of Medical Malpractice, Nancy L. Zisk
Seattle University Law Review
This Article considers whether state damages caps are constitutional and examines recent studies suggesting that damages caps are not achieving their intended goals. Given the mounting evidence against the effectiveness of damages caps and the questions about their constitutional validity, this Article proposes moving away from legislative caps on damages. Instead, this Article argues for a modified market model based on a combination of improved care, which would include improvements in service; better peer review; and, if necessary, legislation which would be designed to protect the confidentiality of peer review, reduce frivolous lawsuits, and regulate insurance rate increases. Part II …