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Articles 31 - 60 of 72
Full-Text Articles in Legal Remedies
Federalism At The Cathedral: Property Rules, Liability Rules, And Inalienability Rules In Tenth Amendment Infrastructure, Erin Ryan
Erin Ryan
As climate change, war in the Middle East, and the price of oil focus American determination to move beyond fossil fuels, nuclear power has resurfaced as a possible alternative. But energy reform efforts may be stalled by an unlikely policy deadlock stemming from a structural technicality in an aging Supreme Court decision: New York v. United States, which set forth the Tenth Amendment anti-commandeering rule and ushered in the New Federalism era in 1992. This dry technicality also poses ongoing regulatory obstacles in such critical interjurisdictional contexts as stormwater management, climate regulation, and disaster response. Such is the enormous power …
The Tort Of Betrayal Of Trust, Caroline Forell, Anna Sortun
The Tort Of Betrayal Of Trust, Caroline Forell, Anna Sortun
Caroline A Forell
Fiduciary betrayal is a serious harm. When the fiduciary is a doctor or a lawyer, and the entrustor is a patient or client, this harm frequently goes unremedied. Betrayals arise out of disloyalty and conflicts of interest where the lawyer or doctor puts his or her interest above that of his or her client or patient. It causes dignitary harm that is different from the harm flowing from negligent malpractice. Nevertheless, courts, concerned with overdeterrence, have for the most part refused to allow a separate claim for betrayal. In this Article, we suggest that betrayal deserves a remedy and propose …
Common Law Punitive Damages: Something For Everyone?, Doug Rendleman
Common Law Punitive Damages: Something For Everyone?, Doug Rendleman
Scholarly Articles
Common law punitive damages have some feature that will get everyone's goat: a civil court meting out quasi-criminal punishment; a sanction, punishment, imposed after mere civil procedure; a civil jury stretching imprecise instructions into Robin Hood justice; a private plaintiff receiving a windfall that exceeds any reasonable estimate of loss; and, finally, the Supreme Court wielding the discredited doctrine of substantive due process. This article will examine the preceding fault lines and the countervailing considerations, devoting more attention to substantive due process than the others. It will then turn to Exxon Shipping Co. v. Baker, and include some modest …
Bailouts, Bonuses, And The Return Of Unjust Gain, Tracy A. Thomas
Bailouts, Bonuses, And The Return Of Unjust Gain, Tracy A. Thomas
Tracy A. Thomas
In March 2009, ailing insurance giant triggered a national outcry when it paid out $165 million in government bailout funds for employee bonus incentives. President Obama called the bonus payments an “outrage” and promised that his administration would “pursue every single legal avenue to block these bonuses and make the taxpayers whole.” One possible answer lies with the remedy of restitution. Restitution, based on unjust enrichment, provides a common law solution that just might work. Unjust enrichment is a remedy directed at the defendant that requires the wrongdoer to return all ill-gotten gains. The goal is to return the defendant …
The Sounds Of Silence: Are U.S. Arbitrators Creating Internationally Enforceable Awards When Ordering Class Arbitration In Cases Of Contractual Silence Or Ambiguity, S. I. Strong
Faculty Articles
The Article's overall aim is to determine the international enforceability of international class awards in cases in which the arbitration agreement is silent or ambiguous as to class treatment. Part I therefore describes the current consensus on class arbitration in the United States to lay the groundwork for further discussion. This Part also describes the incidence of class arbitration in other domestic contexts, showing that class arbitration is not as "uniquely American" as opponents have claimed. Part I continues with an overview of international class arbitration to date and identifies the likelihood of international class arbitration's expansion in the future. …
Rethinking Bivens: Legitimacy And Constitutional Adjudication, James E. Pfander, David Baltmanis
Rethinking Bivens: Legitimacy And Constitutional Adjudication, James E. Pfander, David Baltmanis
Faculty Working Papers
The Supreme Court's decision in Bivens v. Six Unknown Named Agents of the Federal Bureau of Narcotics provides an uncertain framework for the enforcement of constitutional rights against the federal government. Rather than recognizing a federal common law right of action for use in every case, the Court views itself as devising actions on a case-by-case basis in light of a range of factors. Critics on all sides question the Court's approach, doubting either its power to fashion federal common law or the tendency of its case-by-case analysis to create gaps in constitutional enforcement. Particularly when compared with actions under …
Ride At Your Own Risk: Bicyling And Government Tort Immunity In Illinois, 43 J. Marshall L. Rev. 293 (2009), John Ochoa
Ride At Your Own Risk: Bicyling And Government Tort Immunity In Illinois, 43 J. Marshall L. Rev. 293 (2009), John Ochoa
UIC Law Review
No abstract provided.
From Pinochet To Rumsfeld: Universal Jurisdiction In Europe 1998-2008, Wolfgang Kaleck
From Pinochet To Rumsfeld: Universal Jurisdiction In Europe 1998-2008, Wolfgang Kaleck
Michigan Journal of International Law
This Essay provides a survey of more than fifty universal jurisdiction proceedings in European courts and illustrates that universal jurisdiction is no longer a seldom-used theoretical concept, but a widespread practice. However, it is a practice that faces a number legal and practical obstacles identified here. Similar difficulties are encountered in other mechanisms used to combat impunity, including territorial and personality jurisdiction, state accountability at the European Court of Human Rights (ECtHR) and the Inter-American Court of Human Rights (IACtHR), and civil litigation in the United States. The Essay then begins an evaluation of the last ten years of universal …
Ubi Jus, Ibi Remedium, Steven M. Schneebaum
Ubi Jus, Ibi Remedium, Steven M. Schneebaum
Human Rights & Human Welfare
A review of:
Justice Across Borders: The Struggle for Human Rights in U.S. Courts. By Jeffrey Davis. New York: Cambridge University Press, 2008. 320 pp.
The Appropriations Power And Sovereign Immunity, Paul F. Figley
The Appropriations Power And Sovereign Immunity, Paul F. Figley
Articles in Law Reviews & Other Academic Journals
Discussions of sovereign immunity assume that the Constitution contains no explicit text regarding sovereign immunity. As a result, arguments about the existence - or nonexistence - of sovereign immunity begin with the English and American common-law doctrines. Exploring political, fiscal, and legal developments in England and the American colonies in the seventeenth and eighteenth centuries, this Article shows that focusing on common-law developments is misguided. The common-law approach to sovereign immunity ended in the early 1700s. The Bankers’ Case (1690–1700), which is often regarded as the first modern common-law treatment of sovereign immunity, is in fact the last in the …
Determining If Mandatory Arbitration Is “Fair”: Asymmetrically Held Information And The Role Of Mandatory Arbitration In Modulating Uninsurable Contract Risks, Paul B. Marrow
NYLS Law Review
No abstract provided.
Ascertaining The Burden Of Proof For An Award For Punitive Damages In New York? Consult Your Local Appellate Division, Leon D. Lazer, John R. Higgitt
Ascertaining The Burden Of Proof For An Award For Punitive Damages In New York? Consult Your Local Appellate Division, Leon D. Lazer, John R. Higgitt
Touro Law Review
No abstract provided.
Bargaining In The Shadow Of Rate-Setting Courts, Daniel A. Crane
Bargaining In The Shadow Of Rate-Setting Courts, Daniel A. Crane
Articles
Judges will tell you that they are comparatively poor rate regulators. The specialized, technical competence and supervisory capacity that public utilities commissions enjoy are usually absent from judicial chambers. Nonetheless, when granting antitrust remedies-particularly remedies for monopolistic abuse of intellectual property-courts sometimes purport to act as rate regulators for the licensing or sale of the defendant's assets. At the outset, we should distinguish between two forms ofjudicial rate setting. In one form, a court (or the FTC in its adjudicative capacity) grants a compulsory license and sets a specific rate as part of a final judgment or an order. The …
Bah V. Mukasey, Sandrine Dehaeze
Misinformed Consent: Non-Medical Bases For American Birth Recommendations As A Human Rights Issue, Lisa L. Chalidze
Misinformed Consent: Non-Medical Bases For American Birth Recommendations As A Human Rights Issue, Lisa L. Chalidze
NYLS Law Review
No abstract provided.
Toward A Unified Theory Of Retroactivity, Steven W. Allen
Toward A Unified Theory Of Retroactivity, Steven W. Allen
NYLS Law Review
No abstract provided.
Overstaying Your Welcome: The Martin Act And Post-Effective-Date Tenants, Kristopher Ferranti
Overstaying Your Welcome: The Martin Act And Post-Effective-Date Tenants, Kristopher Ferranti
NYLS Law Review
No abstract provided.
Cartoon Network Lp, Lllp V. Csc Holdings, Inc., Marc Miller
Cartoon Network Lp, Lllp V. Csc Holdings, Inc., Marc Miller
NYLS Law Review
No abstract provided.
In The Matter Of Ottinger V. Non-Party The Journal News, Daniel Haier
In The Matter Of Ottinger V. Non-Party The Journal News, Daniel Haier
NYLS Law Review
No abstract provided.
Techno-Jury: Techniques In Verbal And Visual Persuasion, Gregory J. Morse
Techno-Jury: Techniques In Verbal And Visual Persuasion, Gregory J. Morse
NYLS Law Review
No abstract provided.
International Terrorism: The Legitimization Of Safe Harbor States In International Law, Carol A. Bahan
International Terrorism: The Legitimization Of Safe Harbor States In International Law, Carol A. Bahan
NYLS Law Review
No abstract provided.
Teamsters Local 445 Freight Division Pension Fund V. Dynex Capital Inc., Erica E. Bonnett
Teamsters Local 445 Freight Division Pension Fund V. Dynex Capital Inc., Erica E. Bonnett
NYLS Law Review
No abstract provided.
How Planyc Will Facilitate Brownfield Redevelopment, Mark Mcintyre
How Planyc Will Facilitate Brownfield Redevelopment, Mark Mcintyre
NYLS Law Review
No abstract provided.
The Contemporary Guide To Negotiating The Author-Publisher Contract, Martin P. Levin
The Contemporary Guide To Negotiating The Author-Publisher Contract, Martin P. Levin
NYLS Law Review
No abstract provided.
Regulating Interoperability: Lessons From At&T, Microsoft, And Beyond, Philip J. Weiser
Regulating Interoperability: Lessons From At&T, Microsoft, And Beyond, Philip J. Weiser
Publications
Antitrust law confronted the challenges of regulating interoperability between platforms and applications in both the AT&T and Microsoft cases, but it has yet to mine the series of lessons that can inform how to address this challenge going forward. With the Microsoft consent decree still in place, it may too soon to render a final judgment on the remedy adopted in that case as well as to evaluate more generally whether antitrust law is up to the task of developing the institutional strategies - be it the use of technical committees or reliance on standard setting bodies - for addressing …
Remedies For Wrongfully-Issued Preliminary Injunctions: The Case For Disgorgement Of Profits, Ofer Grosskopf, Barak Medina
Remedies For Wrongfully-Issued Preliminary Injunctions: The Case For Disgorgement Of Profits, Ofer Grosskopf, Barak Medina
Seattle University Law Review
This Article demonstrates that the underlying aim of remedies for wrongfully issued preliminary injuntion leads to two central conclusions. First, it is desirable to award the remedy of restitution, which requires the moving party to disgorge all the benefits obtained at the expense of the defendant as a result of the wrongfully-issued preliminary injunction. Second, it may be unjustified to compel the plaintiff to compensate the defendant for all harms inflicted by the wrongfully-issued preliminary injunction. Part I of this Article summarizes the law of remedies for wrongfully-issued preliminary injunctions. Part I.A surveys the doctrinal reasons for imposing on the …
Preserving Attorney-Client Privilege In The Age Of Electronic Discovery, Anthony Francis Bruno
Preserving Attorney-Client Privilege In The Age Of Electronic Discovery, Anthony Francis Bruno
NYLS Law Review
No abstract provided.
Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr
Sentence Reduction As A Remedy For Prosecutorial Misconduct, Sonja B. Starr
Articles
Current remedies for prosecutorial misconduct, such as reversal of conviction or dismissal of charges, are rarely granted by courts and thus do not deter prosecutors effectively. Further, such all-or-nothing remedial schemes are often problematic from corrective and expressive perspectives, especially when misconduct has not affected the trial verdict. When granted, these remedies produce windfalls to guilty defendants and provoke public resentment, undermining their expressive value in condemning misconduct. To avoid these windfalls, courts refuse to grant any remedy at all, either refusing to recognize violations or deeming them harmless. This often leaves significant non-conviction-related harms unremedied and egregious prosecutorial misconduct …
The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz
The Truth About Torts: Rethinking Regulatory Preemption And Its Impact On Public Health, William Buzbee, William Funk, Thomas Mcgarity, Nina A. Mendelson, Sidney Shapiro, David Vladeck, Matthew Shudtz
Other Publications
As consumers, we assume that the automobiles, pharmaceuticals, medical devices, and other products we purchase are generally safe for their intended uses. We rely on manufacturers to design and produce safe products, and we assume that federal regulators are conscientious watchdogs of the marketplace. In most instances, our assumptions are valid and we safely go about our lives. But the regulatory system is now frayed to the point that dangerous products sometimes slip through the cracks. Vioxx, Firestone/ATX tires, and toxics-laden children’s toys have endangered and harmed millions. In these cases, society depends on the state courts as a venue …
Outward Bound To Other Cultures: Seven Guidelines For U.S. Dispute Resolution Trainers, Harold I. Abramson
Outward Bound To Other Cultures: Seven Guidelines For U.S. Dispute Resolution Trainers, Harold I. Abramson
Scholarly Works
This article was inspired by the opportunity to observe a two day negotiation training program' put together by Hamline University School of Law in Rome. It was called "Developing 'Second Generation' Global Negotiation Education." The trainers conducted a high level program for around thirty sophisticated professionals. And over forty scholars observed the training and then spent another two days discussing what was observed. Based on that experience as an observer and my own experience teaching and training abroad, along with additional research, I have identified seven guidelines for U.S. trainers. These guidelines should help trainers reduce any cultural mishaps, prepare …