Legal Remedies Commons^™

Third Party Access And Refusal To Deal In European Energy Networks: How Sector Regulation And Competition Law Meet Each Other, Michael Diathesopoulos

Michael Diathesopoulos

In this paper, we will analyse the issue of concurrence between competition and sector rules and the relation between parallel concepts within the two different legal frameworks. We will firstly examine Third Party Access in relation to essential facilities doctrine and refusal of access and we will identify the common points and objectives of these concepts and the extent to which they provide a context to each other’s implementation. Second, we will focus on how Commission uses sector regulation and objectives as a context within the process of implementation of competition law in the energy sector and third, we will …

The "Enlightened Barbarity" Of Inclusive Fitness And Wrongful Death: Biological Justifications For An Investment Theory Of Loss In Wycko V. Gnodtke, Ryan Shannon

University of Michigan Journal of Law Reform

Wrongful death laws should permit and encourage courts and juries to consider the survivors' investment in decedents when determining wrongful death damages, given new biological justifications for this theory of loss. The investment theory of damages, which permits an award of damages based on the investment of financial resources relatives make in one another, originated in Michigan's courts in the early 1 960s, but as of present day has been largely abrogated. In the context of modern understandings of evolutionary biology, including kin selection theory and sociobiology, the investment theory of recovery accords with the goals of corrective justice as …

Torts, Frederick J. Moreau

Cal Law Trends and Developments

No abstract provided.

Remedies, Kenneth H. York

Cal Law Trends and Developments

Remedial problems are best dealt with in the context of substantive law situations. However, the disparate characteristics of restitution, equitable remedies, and damages necessitate some generalized preliminary comment. We regret that the points raised in the California cases during a one-year period do not form a tidy or cohesive pattern or adapt themselves to a symmetrical outline.

Torts, Frederick J. Moreau

Cal Law Trends and Developments

No abstract provided.

Remedies, Kenneth H. York

Cal Law Trends and Developments

It is a curious circumstance that, although the sole purpose of a lawsuit is to obtain redress of some sort, the remedial aspects of cases are usually shunted to the back of the litigational bus from which they emerge belatedly, casually, and somewhat rumpled. Anyone searching for illuminating bits of remedial lore in California (or any other) advance sheets must be prepared to rummage about among tag-end paragraphs of literally hundreds of civil cases from which such interest as may originally have existed in parties, facts, controversy, strategy, or even style has long since been drained away.

However, remedial considerations …

Remedies, Kenneth H. York

Cal Law Trends and Developments

This article will cover the remedial aspects of civil cases, and as such will mention several decisions which are reviewed elsewhere in this volume in a substantive law context. It will concentrate upon the California courts' application of various legal remedies (principally damages), equitable remedies (including the existence of equitable jurisdiction), and restitutionary remedies (both legal and equitable) with some reference to the substantive elements needed for restitution.

Presumed Guilty Until Proven Innocent: The Burden Of Proof In Wrongful Conviction Claims Under State Compensation Statutes, Daniel S. Kahn

University of Michigan Journal of Law Reform

Despite significant efforts to uncover and prevent wrongful convictions, little attention has been paid to the compensation of wrongfully convicted individuals once they are released from prison. State compensation statutes offer the best path to redress because they do not require the claimant to prove that the state was at fault for the wrongful conviction and because they are not susceptible to the same political influences as other methods of compensation. However, even under compensation statutes, too many meritorious claims are dismissed, settled for far too little, or never brought in the first place. After examining the current statutory framework, …

Enforcing International Corrupt Practices Law, Paul D. Carrington

Michigan Journal of International Law

This Essay strives to advance the current international movement to deter the transnational corrupt practices that have long burdened the global economy and weakened governments, especially in "developing" nations. Laws made in the last decade to address this longstanding global problem have not been effectively enforced. Described here are the moderately successful efforts in the United States since 1862 to reward private citizens serving as enforcers of laws prohibiting corrupt practices. It is suggested that this American experience might be adapted by international organizations to enhance enforcement of the new public international laws.

Reforms In Medical Device Regulation: An Examination Of The Silicone Gel Breast Implant Debacle, Rebecca Vveisman

Golden Gate University Law Review

This article will consider the regulatory policies of the FDA in protecting the health of the nation's women, particularly its handling of silicone gel breast implants and its policing of the leading implant manufacturer, Dow Corning Corporation. While this article recognizes the various difficult problems which the FDA must address in protecting consumers from unsafe food, drugs, and medical devices, it also recognizes the need for reform. This article will describe what resulted from the tragedies of diethylstilbestrol (DES) and the Dalkon Shield. With these failures in mind, this article will examine present FDA policies, describe social forces outside of …

From Energy Sector Inquiry To Recent Antitrust Decisions In European Energy Markets: Competition Law As A Means To Implement Energy Sector Regulation In Eu, Michael Diathesopoulos

Michael Diathesopoulos

This paper presents the conceptual path followed by European Union, European Commission and European Competition Network, after the Energy Sector Inquiry (2007) towards the realisation of the objective of an Energy Internal Market, fully functional and open to competition. Firstly, we examine the findings of Sector Inquiry and then we describe how the Third Energy Package - that followed - tried to address the issues highlighted by the Inquiry and how Third Energy Package introduces a promising but complex system, in order to develop sector rules. Following the above, we proceed to a brief but close examination of 10 recent …

Relational Contract Theory And Management Contracts: A Paradigm For The Application Of The Theory Of The Norms, Michael Diathesopoulos

Michael Diathesopoulos

This paper examines management contracts as a paradigm for the application of relational contracts theory and especially of the theory of contractual and relational norms. This theory, deriving from Macauley's implications, but structured and analysed by I.R. MacNeil gives us a framework for the explanation and understanding of contractual obligations and business relations' rules and practice. After presenting the key literature about the norms theory and especially defining the content of MacNeil's norms, we define management contracts as relations, characterised by a high relational element and we explain why, investigating all their features, which make them a suitable object for …

Punitive Damages In Securities Arbitration: An Empirical Study, Stephen Choi, Theodore Eisenberg

Cornell Law Faculty Publications

This article provides the first empirical analysis of punitive damages in securities arbitrations. Using a data set of over 6,800 securities arbitration awards, we find that claimants prevailed in 48.9 percent of arbitrations and that 9.1 percent of those claimant victories included a punitive damages award. The existence of a punitive damages award was associated with claims that suggested egregious misbehavior and with claims that provided higher compensatory awards. The pattern of punitive awards is more consistent with a traditional view of punitive damages that incorporates a retributive component than with a law and economics emphasis on efficient deterrence. We …

Peace Agreements And International Peace Operations: The Case Of Sierra Leone, Haruyuki Irie

Seton Hall University Dissertations and Theses (ETDs)

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What A Difference A Day Makes, Or Does It? Work/Family Balance And The Four-Day Work Week, Michelle A. Travis

Michelle A. Travis

This Article considers the growing reliance that four-day work week advocates have placed on work/family claims. It begins by analyzing whether a compressed work schedule may alleviate work/family conflicts, and more importantly, for whom such benefits are most likely to accrue. While studies consistently find that many workers experience lower levels of work/family conflict when working a compressed schedule, the research also suggests that workers with the most acute work/family conflicts may be the least likely either to obtain or to benefit from a four-day work week design. Nevertheless, the political climate surrounding the four-day work week provides a unique …

Making Debtor Remedies More Effective, Melissa B. Jacoby

Melissa B. Jacoby

Commissioned for a conference on credit markets at Harvard Business School in February 2010, this paper explores functional system design and the role of lawyers and intermediaries in providing debtor remedies in a complex legal system. The thesis of this paper, which proceeds in the “law and society” tradition, is that the location of a remedial right within the debtor-creditor system substantially affects the costs and benefits of the remedy for debtors, creditors, the system, and society. In other words, merely adding specific substantive provisions does not directly translate into actual protection. Relatedly, policymakers must recognize that lawyers and other …

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

Faculty Scholarship

No abstract provided.

False Imprisonment As A Tort In India, Hari Priya

Hari Priya

The tort of false imprisonment is one of the most severe forms of human rights violation, and this paper aims to define and to understand the concept of false imprisonment as a tort in India. It also seeks to know about the evolution of the notion of false imprisonment as a tort, with reference to Indian and foreign cases, and understand who and when can one be held liable for the tort of false imprisonment. It further deals with the remedies available for the said tort.

Does Cercla Preempt New York State Law Claims For Cost Recovery And Contribution?, Kristi Weiner

NYLS Law Review

No abstract provided.

City Of New York V. Verizon New York, Inc., Michael T. Leigh

NYLS Law Review

No abstract provided.

Optimal Fines For False Patent Marking, Thomas F. Cotter

Michigan Telecommunications & Technology Law Review

This Essay proposes that, in order to avoid imposing arbitrary (and perhaps unnecessarily large) fines for false patent marking, courts should seek guidance in the law of remedies for false advertising and copyright infringement. In particular, courts should attempt to approximate the social harm caused by actionable false marking by taking into account (1) the plaintiff's loss (if any) and the defendant's gain (if any) attributable to the false marking at issue; (2) the plausibility of substantial but less easily quantifiable harms to consumers and to nonparty competitors; and (3) the risks, on the one hand, of underdeterring statutory violations …

Sliding Towards Educational Outcomes: A New Remedy For High-Stakes Education Lawsuits In A Post-Nclb World, Christopher A. Suarez

Michigan Journal of Race and Law

Sheff v. O'Neill ushered in a new wave of education reform litigation that may challenge the constitutionality of de facto segregation under state education clauses, but its remedy has been inadequate. This Note proposes a new desegregation remedy-the sliding scale remedy-to address socioeconomic isolation in this unique constitutional context. The remedy employs varying degrees of equity power depending on students' academic outcomes. It balances concerns over local control and separation of powers with the court's need to effectuate right, establishes a clear remedial principle, and ensures that states and school districts focus on students as they implement remedies.

Limiting Legal Remedies: An Analysis Of Unclean Hands, T. Leigh Anenson

Kentucky Law Journal

No abstract provided.

Of Dinosaurs And Birds: The Second Circuit’S “Forum Rule” As An Unwarranted Attack On Plaintiffs’ Employment Discrimination Class Action Attorneys’ Fee Petitions, Patrick F. Madden, Shanon J. Carson

Patrick F. Madden

No abstract provided.

Failed Synallagmatic Contracts : Appraisal Of The Maxim "The Party Who Has Control And Can Insure Against The Loss Should Shoulder The Risk", Aimite Jorge

Aimite Jorge

The current position in South African law on enrichment situations arising from "failed agreements" is that "if you have received a performance in terms of a contract which subsequently fails for whatever reason, you give it back if you still have it; if you cannot give it back, you are absolved, unless you were culpable in relation to the loss". Daniel Visser, however, challenges this approach and proposes a new one in his recently published book, Unjustified Enrichment (2008). This article evaluates both this position and the newly suggested approach and it argues that in cases of failed synallagmatic contracts …

Contributory Negligence And Mitigation: Shall The Two Walk Together?, Dr. Yehuda Adar

Yehuda Adar Dr.

-This Article is in Hebrew-

This paper discusses and critically examines the close interrelations of two of the main defences to liability in damages for torts and breach of contract. After a careful analysis of the various similarities between the doctrines of contributory (or comparative) negligence and mitigation of damages, and the basic difference between the two, the article reaches the conclusion that there is no justification for the ongoing existence of the mitigation doctrine. It should be abolished, and the doctrine of comparative negligence should be adopted across the board in both tort law and contract law.

Legal Engineering In Israeli Law: Codification And Unification Of The Law Of Remedies, Dr. Yehuda Adar

Yehuda Adar Dr.

Legal engineering is the process of designing, constructing and finally implementing means to influence the development of a legal system. In Israel, a relatively young legal system, the concepts of legal engineering and comparative law are deeply interconnected. This interconnection is best reflected in the area of private law. The development of this area of the law, almost since the very inception of the State of Israel, has been characterized by a careful and attentive examination of foreign legal regimes, national and supra-national alike. This was done with the explicit intention of benefiting from the wisdom and experience of older, …

Las Investigaciones En Materia De Antidumping. Análisis Del Decreto 2550 De 2010 Frente A Las Investigaciones Para Imponer Derechos Antidumping En Colombia, Juan David Barbosa

Juan David Barbosa Mariño

Este artículo presenta las aspectos más relevantes que deben ser analizados para entender una investigación en materia de imposición de derechos antidumping en Colombia.

New Governance In The Teeth Of Human Frailty: Lessons From Financial Regulation, Cristie L. Ford

Cristie L. Ford

New Governance scholarship has made important theoretical and practical contributions to a broad range of regulatory arenas, including securities and financial markets regulation. In the wake of the global financial crisis, question about the scope of possibilities for this scholarship are more pressing than ever. Is new governance a full-blown alternative to existing legal structures, or is it a useful complement? Are there essential preconditions to making it work, or can a new governance strategy improve any decision making structure? If there are essential preconditions, what are they? Is new governance “modular” – that is, does it still confer benefits …

No Bueno, Buono: An Essay On Salazar V. Buono And Establishment Clause Remedies, David B. Owens

David B. Owens

Atop Sunrise Rock in the Mojave Desert sat a Latin Cross. The only problem, for some, was that this land happened to be owned by the federal government. After contentious litigation, the cross was deemed a violation of the Establishment Clause, and the district court issued an injunction forbidding the cross to remain. That judgment became final and unreviewable, but the district court’s subsequent remedial action—declaring invalid Congress’ attempt to sell only a small “donut” of land around the cross—was not. Congress’ interesting end-around spawned further litigation and an order by the district court modifying the injunction despite the fact …