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Articles 31 - 60 of 78
Full-Text Articles in Legal Remedies
Unjust Impoverishment: Using Restitution Reasoning In Today’S Mortgage Crisis, Peter Linzer, Donna L. Huffman
Unjust Impoverishment: Using Restitution Reasoning In Today’S Mortgage Crisis, Peter Linzer, Donna L. Huffman
Washington and Lee Law Review
No abstract provided.
Restitution In A Contractual Context And The Restatement (Third) Of Restitution & Unjust Enrichment, Joseph M. C. Perillo
Restitution In A Contractual Context And The Restatement (Third) Of Restitution & Unjust Enrichment, Joseph M. C. Perillo
Washington and Lee Law Review
No abstract provided.
Beyond Ex Post Expediency—An Ex Ante View Of Rescission And Restitution, Richard R.W. Brooks, Alexander Stremitzer
Beyond Ex Post Expediency—An Ex Ante View Of Rescission And Restitution, Richard R.W. Brooks, Alexander Stremitzer
Washington and Lee Law Review
It is commonly held that if getting a contractual remedy was costless and fully compensatory, rescission followed by restitution would not exist as a remedy for breach of contract. This claim, we will demonstrate, is not correct. Rescission and restitution offer more than remedial convenience. Rational parties, we argue, would often desire a right of rescission followed by restitution even if damages were fully compensatory and costless to enforce. The mere presence of a threat to rescind, even if not carried out, exerts an effect on the behavior of parties. Parties can enlist this effect to increase the value of …
Bp Oil Spill: Compensation, Agency Costs,And Restitution, David F. Partlett, Russell L. Weaver
Bp Oil Spill: Compensation, Agency Costs,And Restitution, David F. Partlett, Russell L. Weaver
Washington and Lee Law Review
No abstract provided.
Indeterminacy And The Law Of Restitution, James Steven Rogers
Indeterminacy And The Law Of Restitution, James Steven Rogers
Washington and Lee Law Review
No abstract provided.
When The Bezzle Bursts: Restitutionary Distribution Of Assets After Ponzi Schemes Enter Bankruptcy, Mallory A. Sullivan
When The Bezzle Bursts: Restitutionary Distribution Of Assets After Ponzi Schemes Enter Bankruptcy, Mallory A. Sullivan
Washington and Lee Law Review
No abstract provided.
Measurement Of Restitution: Coordinating Restitution With Compensatory Damages And Punitive Damages, Doug Rendleman
Measurement Of Restitution: Coordinating Restitution With Compensatory Damages And Punitive Damages, Doug Rendleman
Washington and Lee Law Review
No abstract provided.
Section 2259 Restitution Claims And Child Pornography Possession, Dina Mcleod
Section 2259 Restitution Claims And Child Pornography Possession, Dina Mcleod
Michigan Law Review
In 2009, a child pornography victim brought a criminal restitution claim against a defendant who possessed images of her abuse. The statutory provision authorizing restitution, 18 U.S.C. § 2259, had never before been used to bring a claim against a defendant who had only possessed, rather than produced or distributed, child pornography ("child pornography possession defendants"). The federal courts have not developed a consistent approach to resolving Section 2259 claims involving such defendants. This Note argues that two conceptions of traditional proximate cause doctrine can provide a framework for analyzing such claims. It examines Section 2259 claims using both a …
Bailouts, Bonuses, And The Return Of Unjust Gain, Tracy A. Thomas
Bailouts, Bonuses, And The Return Of Unjust Gain, Tracy A. Thomas
Akron Law Faculty Publications
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 …
Let Us Never Blame A Contract Breaker, Richard A. Posner
Let Us Never Blame A Contract Breaker, Richard A. Posner
Michigan Law Review
Holmes famously proposed a "no fault" theory of contract law: a contract is an option to perform or pay, and a "breach" is therefore not a wrongful act, but merely triggers the duty to pay liquidated or other damages. I elaborate the Holmesian theory, arguing that fault terminology in contract law, such as "good faith," should be given pragmatic economic interpretations, rather than be conceived of in moral terms. I further argue that contract doctrines should normally be alterable only on the basis of empirical investigations.
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 …
Restitution And The Production Of Legal Doctrine, Chaim Saiman
Restitution And The Production Of Legal Doctrine, Chaim Saiman
Washington and Lee Law Review
No abstract provided.
Restating Restitution: The Restatement Process And Its Critics, Doug Rendleman
Restating Restitution: The Restatement Process And Its Critics, Doug Rendleman
Washington and Lee Law Review
No abstract provided.
Rethinking Section 142 Of The Restatement Of Restitution: Fault, Bad Faith, And Change Of Position, John D. Mccamus
Rethinking Section 142 Of The Restatement Of Restitution: Fault, Bad Faith, And Change Of Position, John D. Mccamus
Washington and Lee Law Review
No abstract provided.
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 …
Against Irreparable Benefits, Omri Ben-Shahar
Against Irreparable Benefits, Omri Ben-Shahar
Articles
In a recent essay in The Yale Law Journal, Douglas Lichtman argues that courts considering preliminary injunctions should account for irreparable benefits in addition to irreparable harms. This is a provocative idea. If a preliminary injunction harms one party but benefits the other, and if both effects are equally difficult to subsequently undo, why focus on one effect (harm) and ignore the other (benefit)? There is a compelling geometric validity to this symmetry observation. But is this a valuable “flipping” exercise? Does it shed a new light and provide useful insight into the law of injunctions? In this Response I …
Rule-Oriented Realism, Emily Sherwin
Rule-Oriented Realism, Emily Sherwin
Michigan Law Review
In his new book The Law and Ethics of Restitution, Hanoch Dagan undertakes to explain and justify the American law of restitution. He offers a broad theoretical account of this poorly understood subject, designed not only to fortify the substantive law of restitution but also to clarify the role and methodology of courts in developing the field. Dagan's book also provides lively discussion of the role of restitution in some of the most highly publicized legal developments of recent years. Those who think of restitution as an obscure branch of "legal remedies" may be surprised to read about the …
Statutes Of Limitations: A Policy Analysis In The Context Of Reparations Litigation, Suzette M. Malveaux
Statutes Of Limitations: A Policy Analysis In The Context Of Reparations Litigation, Suzette M. Malveaux
Publications
This article discusses the underlying policy rationales for statutes of limitations and their exceptions, as demonstrated by Supreme Court precedents. This article explores limitations law in the context of a case brought by African-American survivors of the Tulsa Race Riot of 1921 who sought restitution from the local government for its participation in one of the worst race riots in American history, in violation of their constitutional and federal civil rights. Using the Tulsa case as an exemplar, this article analyzes the propriety of the case’s dismissal as time-barred, and contends that this outcome was unwarranted under precedents and failed …
Reparations And Unjust Enrichment, Emily Sherwin
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 …
Justice For The Collective: The Limits Of The Human Rights Class Action, Paul R. Dubinsky
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 …
When Is Enrichment Unjust? Restitution Visits An Onyx Bathroom, Doug Rendleman
When Is Enrichment Unjust? Restitution Visits An Onyx Bathroom, Doug Rendleman
Scholarly Articles
Not available.
Restitution And Equity: An Analysis Of The Principle Of Unjust Enrichment, Emily Sherwin
Restitution And Equity: An Analysis Of The Principle Of Unjust Enrichment, Emily Sherwin
Cornell Law Faculty Publications
No abstract provided.
Quantum Meruit For The Subcontractor: Has Restitution Jumped Off Dawson's Dock?, Doug Rendleman
Quantum Meruit For The Subcontractor: Has Restitution Jumped Off Dawson's Dock?, Doug Rendleman
Scholarly Articles
No abstract provided.
Teaching Restitution, Candace Kovacic-Fleischer
Teaching Restitution, Candace Kovacic-Fleischer
Scholarly Articles in Law Reviews & Journals
INTRODUCTION: When I began teaching in 1981, I was assigned two separate Remedies courses to teach during the fall: Equitable Remedies and Legal and Extraordinary Remedies. For the Equitable course, I chose the text Leavell, Love & Nelson, Equitable Remedies, Restitution and Damages (3d ed. 1980) and for the Legal and Extraordinary course, York and Bauman, Remedies (3d ed. 1979). I was not sure what "extraordinary remedies" were if they were not equitable remedies, so I assumed they must be this topic called restitution. Of course, most people refer to equitable remedies as the extraordinary ones, and my two Remedies …
In Defense Of The Good Samaritan, Hanoch Dagan
In Defense Of The Good Samaritan, Hanoch Dagan
Michigan Law Review
In the year 1880, in Dalles City, Oregon, a large and valuable load of lumber fell into the Columbia River and was about to be carried away by the river's waters. Since Savage, the owner of this lumber, was absent from the scene, Glenn - who, at that time, was doing construction work for Savage - "furnished help and did service" in saving the lumber "from being washed away and lost." Seven years later, the Supreme Court of Oregon rejected Glenn's claim that Savage owed him "the reasonable value" of his services as well as of the services of the …
Common Law Restitution In The Mississippi Tobacco Settlement: Did The Smoke Get In Their Eyes?, Doug Rendleman
Common Law Restitution In The Mississippi Tobacco Settlement: Did The Smoke Get In Their Eyes?, Doug Rendleman
Scholarly Articles
No abstract provided.
The Distributive Foundation Of Corrective Justice, Hanoch Dagan
The Distributive Foundation Of Corrective Justice, Hanoch Dagan
Michigan Law Review
There are two, apparently conflicting, approaches to private law theorizing. One approach - by now, dare I say, the prevailing approach - analyzes private law through the lens of its social, economic, cultural, or political meanings and ramifications. For the purposes of this Article, we may call the proponents of this approach the "social values school." Other theorists, those who take a corrective justice approach, insist that the adjective "private" is significant and should be the starting point for any understanding of "private law." They claim that this starting point inevitably generates a radically different understanding of private law. Organized …
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 …
Victim Reparations In The Inter-American Human Rights System: A Critical Assessment Of Current Practice And Procedure, Jo M. Pasqualucci
Victim Reparations In The Inter-American Human Rights System: A Critical Assessment Of Current Practice And Procedure, Jo M. Pasqualucci
Michigan Journal of International Law
Part II of this article analyzes the statutory authority for reparations in the Inter-American system in light of the legislative history of the American Convention's reparations provision and compares that authority with that provided for in the European human rights system. Part III sets forth the Inter-American Court's procedures for determining reparations once State responsibility has been established. Part IV evaluates the parties who may receive reparations. Part V analyzes the types of reparations provided generally under international law and specifically in the Inter-American system. Part VI criticizes the Court's determination to grant only a small share of the reparations …
Epstein And Levmore: Objections From The Right?, Emily Sherwin, Maimon Schwarzschild
Epstein And Levmore: Objections From The Right?, Emily Sherwin, Maimon Schwarzschild
Cornell Law Faculty Publications
No abstract provided.