Legal Remedies Commons^™

Reparations And Unjust Enrichment, Emily Sherwin

Cornell Law Faculty Publications

Despite an initial appearance of superior doctrinal fit, restitution is not an appropriate vehicle for reparations claims based on slavery and similar large-scale historical injustices. The justifying principle behind restitution—prevention of unjust enrichment—lacks the moral force necessary to resolve a controversial public dispute about moral rights and obligations among segments of society. At its core, a claim to restitution is an attempt to right a wrong not by alleviating the adverse consequences to oneself, but by diminishing the position of others. In other words, the notion of unjust enrichment is a comparative idea that draws on resentment and the desire …

Comparison To Criminal Sanctions In The Constitutional Review Of Punitive Damages, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

Comparison To Criminal Sanctions In The Constitutional Review Of Punitive Damages, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

A State's Power To Enter Into A Consent Decree That Violates State Law Provisions: What "Findings" Of A Federal Violation Are Sufficient To Justify A Consent Decree That Trumps State Law?, David W. Swift

ExpressO

In the last forty years federal courts have played a prominent role in reshaping our public institutions. And while some scholars question the efficacy of these structural injuctions, the authority of federal courts to order such relief is generally unquestioned. What is open to debate, however, is whether state officials can agree to a remedy they would not have had the authority to order themselves; and if so, to what extent must an underlying constitutional violation be proved so as to justify the remedy?

This article discusses the competing theories and concludes that a remedy that violates state law may …

Solving The Punitive Damage Mismatch, Ari Behar

ExpressO

There are several reasons underlying the system of punitive damages. Application of these reasons to cases yields differing results. The reasons fall into two categories: those that support awarding additional damages to the plaintiff and those that support extracting more damages from the defendant. When the reasons in favor of extraction exceed those in favor of award, the award should be split between the plaintiff and a fund. This fund should be used to supplement awards when the reasons favoring award exceed those favoring extraction.

Soldiers Of Semipalatinsk: Seeking A Theory And Forum For Legal Remedy, Anne Miers Kammer

San Diego International Law Journal

This Comment will address the unique dilemma of individuals in Kazakhstan whose health has been compromised by the former Soviet Union's 40-year period of nuclear testing on what is now Kazakhstan soil. The principal legal analysis of this Comment will focus on the availability of remedies (in the form of monetary damages available through legal resolution) to the citizens and/or state of Kazakhstan, and potential judicial forums in which to seek those remedies. Particular attention will be paid to the comparative likelihood of successful remedial legal action if pursued by a private class of Kazakhstan citizens versus action pursued by …

Justice For The Collective: The Limits Of The Human Rights Class Action, Paul R. Dubinsky

Michigan Law Review

The class action lawsuit is our grand procedural experiment in collective justice. As against the U.S. legal system's strong orientation toward individual rights rather than group rights, the class action is a countercurrent. Through Rule 23 of the Federal Rules of Civil Procedure, large numbers of previously unaffiliated individuals can proceed in federal court as a group, litigating through representatives. A recent form of this litigation, the human rights class action, takes this experiment to its far reaches. In the human rights class action, the tension between individual claimants and the group as a whole can be heightened. The class …

What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser

Michigan Law Review

Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald …

The Goals Of Contract Remedies, Mark P. Gergen

ExpressO

This article offers a general account of the rules that regulate exit and loyalty in contract disputes to make some fundamental points about the goals of contract remedies. The dominant goal of these rules, like all of contract remedies, is vindicating contracting rights. When contract rights give way it is almost always for one of two reasons. Rights sometimes give way to advance the goal of efficient performance. This goal is familiarly expressed by the mitigation principle and, in American contract law, by the theory of efficient breach. Rights also give way to advance the goal of remedial simplicity. In …

The "Bedbug" Case And State Farm V. Campbell, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

The Use Of Prior Convictions After Apprendi, Colleen P. Murphy

Law Faculty Scholarship

No abstract provided.

Give Them Their Due: An African-American Reparations Program Based On The Native American Federal Aid Model, Mishael A. Danielson, Alexis Pimentel

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

Beyond Reparations: An American Indian Theory Of Justice, William C. Bradford

ExpressO

The number of states, corporations, and religious groups formally disowning past records of egregious human injustice is mushrooming. Although the Age of Apology is a global phenomenon, the question of reparations—a tort-based mode of redress whereby a wrongdoing group accepts legal responsibility and compensates victims for the damage it inflicted upon them—likely consumes more energy, emotion, and resources in the U.S. than in any other jurisdiction. Since the final year of the Cold War, the U.S. and its political subdivisions have apologized or paid compensation to Japanese-American internees, native Hawaiians, civilians killed in the Korean War, and African American victims …

Constitutional Interpretation And Coercive Interrogation After Chavez V. Martinez, John T. Parry

ExpressO

Using the Supreme Court's decision last Term in Chavez v. Martinez as a launching pad, this article reveals and addresses fundamental tensions in constitutional interpretation, the law of interrogation, and civil rights litigation. First, this article highlights the importance of remedies to the definition of constitutional rights, which compels us to jettison the idea of prophylactic rules and accept Congress's role in constitutional interpretation. Armed with these insights, the article next considers the law of coercive interrogation. I explain why the privilege against self-incrimination is more than a trial right, and I redefine the central holding of Miranda to take …

Legal Treatment Of Cohabitation In The United States, Cynthia Grant Bowman

Cornell Law Faculty Publications

This article discusses the variety of ways state legal systems in the United States treat cohabitation, both by same-sex and heterosexual couples. The different approaches are described along a spectrum that ranges from one extreme, under which cohabitants have essentially no rights against one another or against third parties, to the other extreme, under which cohabitants are to be treated as though they were married under state law. Different areas of law are discussed, including the rights of cohabitants both against one another (remedies upon dissolution, inheritance) and against third parties, such as state benefits, tort claims, health-related benefits, and …

The Punitive Award As A Sanction In Contract, Dr. Yehuda Adar

Yehuda Adar Dr.

My Ph.D. dissertation -This Article is in Hebrew-

Brown Ii'S "All Deliberate Speed" At Fifty: A Golden Anniversary Or A Mid- Life Crisis For The Constitutional Injunction As A School Desegregation Remedy?, Doug Rendleman

Scholarly Articles

In 1955 in Brown II the Supreme Court instructed school authorities and federal judges how to implement its decision in Brown I that racially segregated public schools violated the constitution. This article summarizes the half-century of federal injunctions that the courts granted to desegregate schools. It organizes the injunctions chronologically under three headings, "all deliberate speed," desegregate "now," and "unitary" districts. Rejecting both extravagant hoopla and charges of "failure," the article approves disciplined judicial discretion leading to large-scale structural injunctions when the times are ripe because unconstitutional conditions warrant massive judicial reconstruction. In particular, the article maintains that the courts' …

Supreme Court 2002 Term - The Property Cases: Iolta, Qui Tam Actions, And Punitive Damages (Symposium: The Fifteenth Annual Supreme Court Review), Leon D. Lazer

Scholarly Works

No abstract provided.

The Blockbuster Punitive Damages Awards, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This paper provides an analysis of 64 punitive damages awards of at least $100 million. Based on an inventory of these cases, there is evidence that these blockbuster awards are highly concentrated geographically, as two states account for 27 of the 64 awards. The awards also have been rising substantially over time, with the majority of these blockbuster awards taking place since 1999. An assessment of the current status of the blockbuster punitive damages awards indicates that most of these awards have been appealed, but the reversal of these punitive damages awards is the exception rather than the rule. Many …

Punitive Damages: How Judges And Juries Perform, Joni Hersch, W. Kip Viscusi

Vanderbilt Law School Faculty Publications

This paper presents the first empirical anatysis that demonstrates that juries differ from judges in awarding punitive damages. Our review of punitive damages awards of $100 million or more identified 63 such awards, of which juries made 95 percent. These jury awards are highly unpredictable and are not significantly correlated with compensatory damages. Using data on jury and bench verdicts from the Civil Justice Survey of State Courts, 1996, we find that juries are significantly more likely to award punitive damages than are judges and award higher levels of punitive damages. Jury awards are also less strongly related to compensatory …

Flawed Justice: Limitation Of Parental Remedies For The Loss Of Consortium Of Adult Children, William S. Bailey

Seattle University Law Review

This article presents the inherent contradiction between a parent- child relationship that has steadily evolved from the early 20th Century to the present and the multitude of court decisions on damages that remain studiously ignorant of this shift. Part I of the article will set forth the common law origins of restrictions on recovery for wrongful death within the context of a shifting view of children from economic units to objects of adoration. Part II will examine the devastating impact that the loss of an adult child has on parents both from their perspectives and from now existing research. In …

The Foggy Road For Evaluating Punitive Damages: Lifting The Haze From The Bmw/State Farm Guideposts, Steven L. Chanenson, John Y. Gotanda

University of Michigan Journal of Law Reform

In this Article, Professors Chanenson and Gotanda propose that courts treat comparable maximum criminal or civil legislative fines as a presumptive due process limit on punitive damage awards. The Article reviews the manner in which courts have implemented the three-guidepost framework for constitutional review of punitive awards laid out by the Supreme Court in BMW of North America, Inc. v. Gore and in State Farm Mutual Automobile Insurance Co. v. Campbell. Finding that courts have struggled to articulate a coherent rationale and methodology for review of such awards, the authors propose a greater reliance on the third guidepost of …

Petitioner's Brief, Richard B. Collins

Publications

No abstract provided.

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 …

The Impact Of Recent U.S. Supreme Court Punitive Damages Jurisprudence On Oklahoma's Punitive Damages Statute And Jury Instructions, Andrew C. Jayne

Oklahoma Law Review

No abstract provided.

The Recently Revised Marriage Law Of China: The Promise And The Reality, Charles J. Ogletree Jr., Rangita De Silva De Alwis

All Faculty Scholarship

In April 2001, the Standing Committee of the Ninth National People's Congress (NPC), China's highest legislative body, passed the long-debated and much awaited amendments to the Marriage Law on the closing day of its twenty-first session. As stated by one PRC commentator, "In the 50 years since the founding of the New China, there has not been any law that has caused such a widespread concern for ordinary people."'

Even though the recent revisions to the marriage laws have been hailed as some of the most significant and positive changes in family law in China, thus far no empirical evaluation …

Threatening An Irrational Breach Of Contract, Oren Bar-Gill, Omri Ben-Shahar

Articles

When circumstances surrounding the contract change, a party might consider breach a more attractive option than performance. Threatening breach, this party may induce the other party to modify the original agreement. The contract law doctrine of modification determines whether and when these modifications are enforceable. To promote social welfare as well as the interests of the threatened party, the law should enforce modifications if and only if the modification demand is backed by a credible threat to breach. This paper argues that credibility is not a function of pecuniary interests alone. A decision to breach can be motivated also by …

Attorney Fees: Attorney Fees, Prevailing Parties, And Judicial Discretion In Oklahoma Practice: How It Is, How It Should Be, Jami Rhoades Antonisse

Oklahoma Law Review

No abstract provided.