Legal Remedies Commons^™

Surprisingly Punitive Damages, Bert I. Huang

Faculty Scholarship

Damages can add up to super-punitive amounts in unintended ways. To take a textbook example: The Defendant has caused an industrial accident or other mass tort. Plaintiff 1 sues, winning punitive damages based on the reprehensibility of that original act. Plaintiff 2 also sues – and also wins punitive damages on the same grounds. So do Plaintiff 3, Plaintiff 4, and so forth. If each of these punitive awards is directed at the same general badness of that original act, then these punishments are redundant. When such redundancy occurs, even damages that are meant to be punitive can reach surprisingly …

Onlookers Tell An Extraordinary Entity What To Do, Anita Bernstein

Faculty Scholarship

No abstract provided.

The Paradoxes Of Restitution, Mark A. Edwards

Faculty Scholarship

Restitution following mass dispossession is often considered both ideal and impossible. Why? This article identifies two previously unnamed paradoxes that undermine the possibility of restitution.

First, both dispossession and restitution depend on the social construction of rights-worthiness. Over time, people once considered unworthy of property rights ‘become’ worthy of them. However, time also corrodes the practicality and moral weight of restitution claims. By the time the dispossessed ‘become’ worthy of property rights, restitution claims are no longer practically or morally viable. This is the time-unworthiness paradox.

Second, restitution claims are undermined by the concept of collective responsibility. People are sometimes …

The 9/11 Litigation Database: A Recipe For Judicial Management, Aaron D. Twerski, Judge Alvin K. Hellerstein, James A. Henderson, Jr.

Faculty Scholarship

No abstract provided.

Pricing Compliance: When Formal Remedies Displace Reputational Sanctions, Rachel Brewster

Faculty Scholarship

The conventional wisdom in international law is that dispute resolution institutions sharpen the reputational costs to states. This article challenges this understanding by examining how the inclusion of dispute resolution tribunals and remedy regimes can alter reputational analysis by shifting the audience¹s understanding of how mandatory a treaty's substantive obligations are. Drawing on the distinction between prices and sanctions, this article contests the assumption that the introduction of a remedy regime in international agreements will regularly increase compliance with the treaty¹s substantive terms. Instead, some remedy regimes may 'price' deviations from the treaty¹s terms and thereby facilitate breaches of the …

Of Civil Wrongs And Rights: Kiyemba V. Obama And The Meaning Of Freedom, Separation Of Powers, And The Rule Of Law Ten Years After 9/11, Katherine L. Vaughns, Heather L. Williams

Faculty Scholarship

This article is about the rise and fall of continued adherence to the rule of law, proper application of the separation of powers doctrine, and the meaning of freedom for a group of seventeen Uighurs—a Turkic Muslim ethnic minority whose members reside in the Xinjiang province of China—who had been held at the Guantanamo Bay Naval Base since 2002. Most scholars regard the trilogy of Hamdi v. Rumsfeld, Hamdan v. Rumsfeld, and Boumediene v. Bush as demonstrating the Supreme Court’s willingness to uphold the rule of law during the war on terror. The recent experience of the Uighurs …

Real Remedies For Virtual Injuries, Anita Bernstein

Faculty Scholarship

No abstract provided.

A Case Study In The Superiority Of The Purposive Approach To Statutory Interpretation: Bruesewitz V. Wyeth , Donald G. Gifford, William L. Reynolds, Andrew M. Murad

Faculty Scholarship

This Article uses the Supreme Court’s 2011 decision in Bruesewitz v. Wyeth to examine the textualist or “plain meaning” approach to statutory interpretation. For more than a quarter-century, Justice Scalia has successfully promoted textualism, usually associated with conservatism, among his colleagues. In Bruesewitz, Scalia, writing for the majority, and his liberal colleague Justice Sotomayer, in dissent, both employed textualism to determine if the plaintiffs, whose child was allegedly harmed by a vaccine, could pursue common-law tort claims or whether their remedies were limited to those available under the no-fault compensation system established by the National Childhood Vaccine Injury Act. Despite …

Compensating Market Value Losses: Rethinking The Theory Of Damages In A Market Economy, Steven L. Schwarcz

Faculty Scholarship

The BP Deepwater Horizon spill and the Toyota car recalls have highlighted an important legal anomaly that has been overlooked by scholars — judicial inconsistency and confusion in ruling whether to compensate for the loss in market value of wrongfully affected property. This article seeks to understand the anomaly and, in the process, to build a stronger foundation for enabling courts to decide when — and in what amounts — to award damages for market value losses. To that end, the Article analyzes the normative rationales for generally awarding damages, adapting those rationales to derive a theory of damages that …

Eliminating The Need For Caps On Title Vii Damage Awards: The Shield Of Kolstad V. American Dental Association, Michael C. Harper

Faculty Scholarship

After recounting the legislative history of the Civil Rights Act of 1991, this article reconsiders the legislative compromise that allowed in this Act for capped compensatory and punitive damages as remedies for Title VII violations. This reconsideration is made in light of the Court’s decision in Kolstad v. American Dental Association, granting employers protection from a punitive damage remedy if they can demonstrate a good faith effort to comply with the Act. The article argues that this holding obviates the need for damage cap protection of innocent employers. It does so by enabling employers to shield themselves from the threat …

Lethal Discrimination 2: Repairing The Remedies For Racial Discrimination In Capital Sentencing, J. Thomas Sullivan

Faculty Scholarship

No abstract provided.

Declaratory Relief After Medimmune, David I. Levine, Charles E. Belle

Faculty Scholarship

No abstract provided.

Punitive Damages And Class Actions, Francis Mcgovern

Faculty Scholarship

The union of punitive damages and class actions can be aptly described with Samuel Johnson’s famous quotation regarding marriage: “The triumph of hope over experience.” By most conventional wisdom, there is little future for plaintiffs or defendants who desire to resolve punitive damages claims globally using the procedural vehicle of a class action. From a conceptual perspective, however, there are circumstances under which the union could function. This Article explores those possibilities, not in the spirit of normative support, but in the spirit of exploring theories that may have some prospective vitality. Notwithstanding the chilly reception that punitive damages class …

The Comparative Nature Of Punishment, Adam Kolber

Faculty Scholarship

No abstract provided.

The Legacy Of The 9/11 Fund And The Minnesota I-35w Bridge-Collapse Fund: Creating A Template For Compensating Victims Of Future Mass-Tort Catastrophes, Michael K. Steenson

Faculty Scholarship

The purpose of this article is to analyze and compare the 9/11 Fund and the Minnesota bridge-collapse compensation scheme for purposes of illustrating the necessary components of any future compensation schemes legislatures consider adopting in cases involving other catastrophes. This article first sets out the primary issues that must be addressed when considering a compensation scheme. It then examines the choices made in the 9/11 Fund and Minnesota’s bridge-collapse compensation scheme. A brief comparison of the two compensation schemes follows to provide the framework for considering the components of future compensation schemes.

Asbestos Achievements, Anita Bernstein

Faculty Scholarship

No abstract provided.

Rethinking "Effective Remedies": Remedial Deterrence In International Courts, Sonja Starr

Faculty Scholarship

One of the bedrock principles of contemporary international law is that victims of human rights violations have a right to an “effective remedy.” International courts usually hold that effective remedies must at least make the victim whole, and they sometimes adopt even stronger remedial rules for particular categories of human rights violations. Moreover, courts have refused to permit departure from these rules on the basis of competing social interests. Human rights scholars have not questioned this approach, frequently pushing for even stronger judicial remedies for rights violations. Yet in many cases, strong and inflexible remedial rules can perversely undermine human …

Injunctions In Defamation Cases, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

Corrective Justice And Liability For Global Warming, Matthew D. Adler

Faculty Scholarship

No abstract provided.

If You Prompt Them, They Will Rule: The Warranty Of Habitability Meets New Court Information Systems, Mary Zulack

Faculty Scholarship

A recent conference on housing rights invited participants to think about the impacts, actual and potential, of the judge-made doctrine of the implied warranty of habitability in residential tenancies. This essay focuses on the warranty, and suggests establishing technology systems for judges to help them give new
life to the doctrine and thereby to accelerate actual repair of rental housing through court mandates.

The conference attendees seemed to agree that when trial judges are presented with claimed breaches of the warranty of habitability, they have not, on the whole, used the doctrine to order that repairs actually be effectuated. They …

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

Faculty Scholarship

No abstract provided.

Genetic Information, Privacy And Insolvency, Edward J. Janger

Faculty Scholarship

No abstract provided.

Reform Of Imf Conditionality - A Proposal For Self-Imposed Conditionality, Ofer Eldar

Faculty Scholarship

The IMF has faced criticism of its expansive use of conditionality. The paper proposes a new procedure for IMF lending designed to meet these criticisms by arguing for the legalization and formalization of the procedure for IMF lending in the light of legal concepts derived mainly from national administrative laws. The gist of the procedure is that, rather than have the IMF determine loan conditions following informal negotiations with member countries, countries seeking Fund assistance will design the conditions themselves. The IMF will have specified powers under which to review these conditions. Apart from other procedural requirements, conditions will have …

Important” And “Irreversible” But Maybe Not “Unreviewable”: The Dilemma Of Protecting Defendants’ Rights Through The Collateral Order Doctrine, Kristin B. Gerdy

Faculty Scholarship

This articles addresses the collateral order doctrine beginning with its inception in Cohen v. Beneficial Industrial Loan Corp., and continuing through an overview of theCourt's civil collateral order jurisprudence illustrating the development of the "requirements" for attaining appellate review under the doctrine. It examines the role of "important rights" in the Court's collateral order cases and attempts to determine whether "importance" is an additional requirement of the collateral order test. The author seeks to define what the Court means by an "important" right or issue, and to explain the view that some rights are sufficiently "important" to outweigh costs of …

Grief, Procedure And Justice: The September 11th Victim Compensation Fund, Elizabeth M. Schneider

Faculty Scholarship

No abstract provided.

Restatement (Third) Of Torts: General Principles And The Prescription Of Masculine Order, Anita Bernstein

Faculty Scholarship

No abstract provided.

The Secondary Effects Of Environmental Justice Litigation: The Case Of West Dallas Coalition For Environmental Justice V. Epa, Gregg P. Macey, Lawrence E. Susskind

Faculty Scholarship

No abstract provided.

Alternative Dispute Resolution And The Occupational Safety And Health Review Commission: Settlement Judges And Simplified Proceedings, Morell E. Mullins Sr.

Faculty Scholarship

No abstract provided.

State Accountability For Violations Of Intellectual Property Rights: How To “Fix” Florida Prepaid (And How Not To), Ernest A. Young, Mitchell N. Berman, R. Anthony Reese

Faculty Scholarship

In its Florida Prepaid and College Savings Bank decisions of two terms ago, the Supreme Court raised significant barriers to Congress's ability to subject the states to damages liability in federal intellectual property suits. These decisions provoked extensive academic commentary and have also sparked efforts in Congress and at the U.S. Patent and Trademark Office to amend the federal intellectual property laws to ensure that state governments will remain accountable for violations of federal rights. This article explores how such legislation might best be shaped in order to withstand constitutional challenge.

Satisfactory treatment of the issue requires examination of a …