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Articles 31 - 60 of 75
Full-Text Articles in Legal Remedies
Long Live The Lie Bill!, Lucila I. Van Dam
Long Live The Lie Bill!, Lucila I. Van Dam
University of Michigan Journal of Law Reform
What successful defamation plaintiffs typically desire and doctrinally deserve is to have their reputations restored. Presently, however, a plaintiff who has established that she was defamed by the defendant is entitled only to an award of damages, which does nothing to restore reputation. This Note proposes that in addition to a damages award, courts-- if they are to take seriously their obligation to compensate the plaintiff-- should order the defendant to retract the defamatory statement. Contrary to the prevailing view, this Note argues that the proposed retraction order does not jeopardize the First Amendment guarantee of free expression.
Full Compensation, Not Overcompensation: Rethinking Prejudgment Interest Offsets In Washington, Aric Jarrett
Full Compensation, Not Overcompensation: Rethinking Prejudgment Interest Offsets In Washington, Aric Jarrett
Seattle University Law Review
Following this introduction, Part II explores the nature and purposes of prejudgment interest, focusing on the role that prejudgment interest plays in a claimant's remedy or damage award and exploring the historical distinction between liquidated and unliquidated claims. Part III builds on this historical distinction by examining two different approaches for calculating prejudgment interest where a meritorious liquidated claim is countered by a meritorious unliquidated counterclaim: (1) the Washington rule, also known as the interest on the entire claim or interest on the whole rule; and (2) the interest on the balance rule and its slight variation in California, which …
The Investor Compensation Fund, Alicia J. Davis
The Investor Compensation Fund, Alicia J. Davis
Articles
The prevailing view among securities regulation scholars is that compensating victims of secondary market securities fraud is inefficient. As the theory goes, diversified investors are as likely to be on the gaining side of a transaction tainted by fraud as the losing side. Therefore, such investors should have no expected net losses from fraud because their expected losses will be matched by expected gains. This Article argues that this view is flawed; even diversified investors can suffer substantial losses from fraud, presenting a compelling case for compensation. The interest in compensation, however, should be advanced by better means than are …
Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger
Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger
Articles
A number of states recognize hedonic damages as a separate category of recovery in tort and tort-like actions. Others consider lost enjoyment of life as an aspect of what are sometimes termed "disability" damages-damages for physical or mental impairment. Many other states permit juries to take account of lost enjoyment of life in setting compensation for pain and suffering or other forms of general damages. In all these jurisdictions, disability has loomed large. And the (explicit or implicit) view of disability is often one of tragic dependency and helplessness. As we show in Part I below, lawyers seeking hedonic damages …
The Foggy Road For Evaluating Punitive Damages: Lifting The Haze From The Bmw/State Farm Guideposts, Steven L. Chanenson, John Y. Gotanda
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 …
The Genie And The Bottle: Collateral Sources Under The September 11th Victim Compensation Fund, Kenneth S. Abraham, Kyle D. Logue
The Genie And The Bottle: Collateral Sources Under The September 11th Victim Compensation Fund, Kenneth S. Abraham, Kyle D. Logue
Articles
The September 11th Victim Compensation Fund of 2001 (the Fund) was part of legislation enacted just eleven days after the terrorist attacks of September 11th in the wake of extraordinary national loss. It is possible, therefore, that the Fund will always be considered an urgent and unique response to the unprecedented events of September 11th. On that view, the character of the Fund will have little longterm policy significance. It is equally possible, however, that the enactment of the Fund will prove to be a seminal moment in the history of tort and compensation law. The Fund adopts a new …
A Taxing Settlement, Hanoch Dagan, James J. White
A Taxing Settlement, Hanoch Dagan, James J. White
Articles
The following essay is based on the talk "Government, Citizens, and Injurious Industries: A Case Study of the Tobacco Litigation," delivered by Hanoch Dagan last May to the Detroit Chapter of the International Association of Jewish Lawyers and Jurists, and on the article "Governments, Citizens, and Injurious Industries," by Dagan and James J. White, '62, which appeared in 75.2 New York University Law Review 254-428 (May 2000). The authors hold conflicting view on the underlying issue of this topic: tobacco company product liability. Professor Dagan holds the position that tobacco companies are liable for harm done by their products; Professor …
Governments, Citizens, And Injurious Industries, Hanoch Dagan, James J. White
Governments, Citizens, And Injurious Industries, Hanoch Dagan, James J. White
Articles
In this Article, Professors Hanoch Dagan and James White study the most recent challenge raised by mass torts litigation: the interference of governments with the bilateral relationship between citizens and injurious industries. Using the tobacco settlement as their case study, Dagan and White explore the important benefits and the grave dangers of recognizing governments' entitlement to reimbursement for costs they have incurred in preventing or ameliorating their citizens' injuries. They further demonstrate that the current law can help capture these benefits and guard against the entailing risks, showing how subrogation law can serve as the legal foundation of the governments' …
The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein
The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein
Articles
A long and distinguished line of law-and-economics articles has established that in many circumstances fully compensatory expectation damages are a desirable remedy for breach of contract because they induce both efficient performance and efficient breach. The expectation measure, which seeks to put the breached-against party in the position she would have been in had the contract been performed, has, therefore, rightly been chosen as the dominant contract default rule. It does a far better job of regulating breach-or-perform incentives than its leading competitors-the restitution measure, the reliance measure, and specific performance. This Essay does not directly take issue with the …
On Recovery In Tort For Pure Economic Loss, Eileen Silverstein
On Recovery In Tort For Pure Economic Loss, Eileen Silverstein
University of Michigan Journal of Law Reform
Pure economic loss is not considered a recoverable harm in tort law. Professor Silverstein asks, "Why not?"
The Constitutionality Of Taxing Compensatory Damages For Mental Distress When There Was No Accompanying Physical Injury, Douglas A. Kahn
The Constitutionality Of Taxing Compensatory Damages For Mental Distress When There Was No Accompanying Physical Injury, Douglas A. Kahn
Articles
Since 1919, statutory tax law has excluded from gross income compensatory damages received on account of a personal injury or sickness.1 The current version of that exclusion is set forth in section 104 (a) (2) of the Internal Revenue Code of 1986.2 The construction of that exclusion, both by the courts and by the Commissioner, underwent significant alterations over the 80-year period that the provision has existed.3 The statute itself was amended several times, most recently in 1996.4 It is the 1996 amendment that has raised a constitutional issue concerning the validity of a portion of the statute.5
Revaluing Restitution: From The Talmud To Postsocialism, Michael A. Heller, Christopher Serkin
Revaluing Restitution: From The Talmud To Postsocialism, Michael A. Heller, Christopher Serkin
Reviews
Whatever happened to the study of restitution? Once a core private law subject along with property, torts, and contracts, restitution has receded from American legal scholarship. Few law professors teach the material, fewer still write in the area, and no one even agrees what the field comprises anymore. Hanoch Dagan's Unjust Enrichment: A Study of Private Law and Public Values threatens to reverse the tide and make restitution interesting again. The book takes commonplace words such as "value" and "gain" and shows how they embody a society's underlying normative principles. Variations across cultures in the law of unjust enrichment reflect …
Identifying And Valuing The Injury In Lost Chance Cases, Todd S. Aagaard
Identifying And Valuing The Injury In Lost Chance Cases, Todd S. Aagaard
Michigan Law Review
Any plaintiff seeking to recover in tort must prove that the defendant has breached the duty of care. Even after the plaintiff has established the defendant's breach of duty, however, issues of causation and damages remain. These two issues are frequently vexing, both conceptually and in terms of evidentiary demonstration. For example, if a plaintiff proves that a defendant acted negligently, it still may be unclear whether the plaintiff would have been injured even ip the absence of the defendant's negligence. Similarly, in assessing damages, factfinders often :find it difficult to attach a monetary value to a plaintiff's nonpecuniary losses …
The Copyright Act Of 1976 And Prejudgment Interest, Jon M. Powers
The Copyright Act Of 1976 And Prejudgment Interest, Jon M. Powers
Michigan Law Review
This Note argues that prejudgment interest should be presumptively available on damages-plus-profits awards under section 504(b) but should not be available for statutory damages under section 504(c). Part I argues that Supreme Court precedent suggests that the explicit reference to interest found in the Patent Act does not prevent courts from awarding prejudgment interest under the 1976 Copyright Act. Part II asserts that the 1976 Copyright Act's silence regarding prejudgment interest does not represent a congressional choice to exclude this remedy and that, in the face of this silence, the underlying purposes of section 504 should determine the propriety of …
Turning From Tort To Administration, Richard A. Nagareda
Turning From Tort To Administration, Richard A. Nagareda
Michigan Law Review
My objective here is to challenge the notion that the recent mass tort settlements - for all their novel qualities in the mass tort area - are truly sui generis in the law. Rather, I contend that the rise of such settlements in tort mirrors the development of public administrative agencies earlier in this century - that, in both instances, powerful new institutions emerged outside preexisting channels of control to wield significant power over human lives and resources. I argue that courts usefully may draw upon familiar doctrines of judicial review in administrative law to form a conceptual framework for …
Ridicule Or Recourse: Parents Falsely Accused Of Past Sexual Abuse Fight Back , Jeffrey M. Whitesell
Ridicule Or Recourse: Parents Falsely Accused Of Past Sexual Abuse Fight Back , Jeffrey M. Whitesell
Journal of Law and Health
This Note argues that wrongly accused parents should be granted standing by the courts to bring suit against therapists who negligently suggest that their children are victims of sexual abuse. The first section will analyze the validity of recovered memories obtained through the use of various suggestive techniques. The second section will explore the various causes of action that courts are considering actionable by innocent third parties against the therapists who implant false memories. The causes of action that will be analyzed are malpractice, negligence, intentional infliction of emotional distress, defamation, loss of companionship and society, and breach of contract. …
Taxation Of Damages After Schleier - Where Are We And Where Do We Go From Here?, Douglas A. Kahn
Taxation Of Damages After Schleier - Where Are We And Where Do We Go From Here?, Douglas A. Kahn
Articles
This article will examine the reasoning of the Schleier decision and speculate as to how taxation of pre-1996 damages will likely apply in light of Schleier. First, the article will set forth a very brief history of the judicial and administrative constructions of the statutory exclusion, and explore tax policy justifications for providing an exclusion from gross income for certain damages. These latter two items (set forth in Parts II and III of this article) are areas that have been extensively addressed previously by several commentators, including the author of this article.' The reason for exploring tax policy issues is …
An Intent-Based Approach To The Acceptance Of Benefits Doctrine In The Federal Courts, Benson K. Friedman
An Intent-Based Approach To The Acceptance Of Benefits Doctrine In The Federal Courts, Benson K. Friedman
Michigan Law Review
This Note discusses the question of when federal courts should allow a party who accepts payment of a judgment subsequently to appeal the deficiency of the award. Part I examines the discrepancies currently existing in the acceptance of benefits doctrine as applied by the federal courts. Part II analogizes this issue to the law of implied-in-fact contracts and argues that accepting the benefits of a judgment should not prevent an appeal unless circumstances clearly indicate a mutual intent to settle all claims and thereby terminate litigation. Part III contends that, under the doctrine expressed in Erie Railroad v. Tompkins, …
Compensatory And Punitive Damages For A Personal Injury: To Tax Or Not To Tax, Douglas A. Kahn
Compensatory And Punitive Damages For A Personal Injury: To Tax Or Not To Tax, Douglas A. Kahn
Articles
Since the adoption in 1919 of the Revenue Act of 1918, damages received on account of personal injuries or sickness have been excluded by statute from gross income.1 This exclusion, which does not apply to reimbursements for medical expenses for which the taxpayer was previously allowed a tax deduction,2 is presently set forth in section 104(a)(2). One might expect that a provision having recently attained the ripe age of 75 years without change in its basic language would have a settled meaning. However, recent litigation under section 104(a)(2) bristles with unsettled issues. Does the exclusion apply to punitive damages? To …
Pain And Suffering Guidelines: A Cure For Damages Measurement "Anomie", Frederick S. Levin
Pain And Suffering Guidelines: A Cure For Damages Measurement "Anomie", Frederick S. Levin
University of Michigan Journal of Law Reform
This Note argues that adapting the criminal sentencing guidelines systems in use in several states to the personal injury context would provide appropriate standards for measuring pain and suffering damages. Part I explores why present methods for measuring pain and suffering are objectionable. A description of the proposed method for developing guidelines is provided in Part II. Part II explores the use of guidelines in criminal sentencing and the analogy between sentencing decisions and assessment of damages for nonpecuniary loss. Part II also describes how to develop and implement guidelines for assessing pain and suffering damages. Part III examines why …
The Constitutionality Of Punitive Damages Under The Excessive Fines Clause Of The Eighth Amendment, Andrew M. Kenefick
The Constitutionality Of Punitive Damages Under The Excessive Fines Clause Of The Eighth Amendment, Andrew M. Kenefick
Michigan Law Review
This Note explores whether courts should look beyond the broad language in Ingraham v. Wright and scrutinize punitive damages under the excessive fines clause. Part I sets out the intuitive argument that punitive damages are analogous to criminal fines. Part II analyzes the Supreme Court's decision in Ingraham v. Wright and also reviews the few federal and state court decisions that have dealt with the excessive fines clause in civil cases, most of which have concluded that the clause has no application in a civil setting. This Part asserts that courts cannot rely solely on the Ingraham decision but must …
A Proposal To Cap Tort Liability: Avoiding The Pitfalls Of Heightened Rationality, Richard S. Kuhl
A Proposal To Cap Tort Liability: Avoiding The Pitfalls Of Heightened Rationality, Richard S. Kuhl
University of Michigan Journal of Law Reform
This Note sets forth a model statute that limits high damage awards, yet will withstand the rigors of judicial scrutiny. After presenting a brief background of the medical malpractice crisis in Part I, Part II outlines the standards of equal protection review that the courts are presently using. The Note then focuses on the constitutional challenges to caps on medical malpractice liability in Part III. Part IV discusses the values and interests that were found to be dispositive in the courts' decisions. Finally, after analyzing the criteria that must be met to ensure that a legislative limitation will survive judicial …
Medical Maloccurrence Insurance: A First Party No-Fault Insurance Proposal For Resolving The Medical Malpractice Insurance Controversy, Larry M. Pollack
Medical Maloccurrence Insurance: A First Party No-Fault Insurance Proposal For Resolving The Medical Malpractice Insurance Controversy, Larry M. Pollack
University of Michigan Journal of Law Reform
Part I of this Note examines the broad, underlying themes of tort theory and argues that, in general, the tort system's primary responsibility should be compensation, rather than deterrence of risk taking. In so far as the production of goods and services causes injury, such losses should be shared and spread as widely and proportionately as possible. Part II discusses the history and nature of the medical malpractice insurance crisis. Part III evaluates the numerous systemic solutions suggested by various commentators. Finally, Part IV proposes a new solution: first party, no-fault medical maloccurrence insurance (MMI).
Class Actions For Punitive Damages, Michigan Law Review
Class Actions For Punitive Damages, Michigan Law Review
Michigan Law Review
This Note argues that a Rule 23 class action offers the best way to manage multiple actions for punitive damages. It begins by examining the policy underlying punitive damages and the plaintiffs interest in recovering them. It then explains why a limited fund is created when courts deny punitive damage recovery as a matter of law or when punitive claims exceed defendant's assets. The Note contends that a Rule 23(b)(l)(B) class action provides the best means to manage this limited fund and reviews the circumstances in which a district court may properly certify a class action for punitive damages. It …
The Deduction Of Unemployment Compensation From Back-Pay Awards Under Title Vii, Eric A. Martin
The Deduction Of Unemployment Compensation From Back-Pay Awards Under Title Vii, Eric A. Martin
University of Michigan Journal of Law Reform
This Note argues that federal courts should not deduct unemployment insurance benefits from Title VII back-pay awards. Part I reviews the legislative history and purposes behind the remedial provisions of Title VII. Part I also presents the arguments that courts have advanced regarding the deduction of unemployment benefits from Title VII back-pay awards. Part II assesses these arguments in light of analogous common law doctrine and the legislative objectives of Title VII, and advances arguments not yet considered by the courts. Finally, Part II concludes that federal courts should resolve this division of authority by not deducting unemployment benefits from …
Controlling Jury Damage Awards In Private Antitrust Suits, Michigan Law Review
Controlling Jury Damage Awards In Private Antitrust Suits, Michigan Law Review
Michigan Law Review
This Note takes the position that the courts should better control jury manipulation in private antitrust actions. Part One suggests that manipulation is likely in such actions, and argues that this manipulation off ends the legislative judgment reflected in the trebling provision without leading to more equitable results. Part Two presents two complementary proposals to control jury manipulation of treble damage awards. These proposals aim to induce the jury to return accurate awards based on the economic loss actually suffered by the plaintiff.
Awarding Attorneys' Fees To Prevailing Pro Se Litigants, Michigan Law Review
Awarding Attorneys' Fees To Prevailing Pro Se Litigants, Michigan Law Review
Michigan Law Review
This Note examines- the propriety of awarding attorneys' fees to prevailing pro se litigants in the federal courts. It focuses on the four major statutes under which almost all pro se cases have been filed: the Freedom of Information Act of 1974 (FOIA), the Privacy Act of 1974 (Privacy Act), the Civil Rights Attorney's Fees Awards Act of 1976 (CRAFAA), and the Truth in Lending Act (TILA). In so doing, it will attempt to devise common principles that can be applied to most requests for pro se attorneys' fees. Part I looks first to the statutes' language and legislative histories …
Refunding Overcharges Under The Emergency Petroleum Allocation Act: The Evolution Of A Compensatory Obligation, Michigan Law Review
Refunding Overcharges Under The Emergency Petroleum Allocation Act: The Evolution Of A Compensatory Obligation, Michigan Law Review
Michigan Law Review
The DOE's authority to order noncompensatory remedies has been seriously questioned. This Note will evaluate the propriety of such remedies in light of the history of petroleum price control enforcement. Although the DOE's enabling legislation does not explicitly impose a compensatory obligation, the Note finds that Congress anticipated that remedies would compensate, to the extent feasible, those persons actually overcharged. Part I traces the development of a compensatory obligation through the various stages of price regulation. Part II criticizes the DOE for abnegating that obligation. The Note concludes that the Department's recent consent orders violate both its own rules and …
The Lawsuit Lottery: Only The Lawyers Win, Michigan Law Review
The Lawsuit Lottery: Only The Lawyers Win, Michigan Law Review
Michigan Law Review
A Book Notice about The Lawsuit Lottery: Only the Lawyers Win by Jeffrey O'Connell
Tort Claims Under The Present And Proposed Bankruptcy Acts, Stephen Allen Edwards
Tort Claims Under The Present And Proposed Bankruptcy Acts, Stephen Allen Edwards
University of Michigan Journal of Law Reform
Congress may soon enact the first complete revision of the United States bankruptcy laws in almost four decades. Among the numerous changes proposed by the legislature is a major alteration of the provability and dischargeability of tort claims asserted against the bankrupt's estate. This article will discuss the treatment of tort claims in the present Act and the changes to be made by the proposed Act, and will evaluate alternative approaches to compensating victims of bankrupt tortfeasors.