Legal Remedies Commons^™

Specious Claims And Global Settlements, S. Todd Brown

Journal Articles

Few problems are more disruptive to the efficient negotiation and operation of comprehensive mass tort settlements than oversubscription, which, at times, appears to be fueled primarily by specious claims. In settlements with opt out rights, a flood of claims can generate a market for lemons, with the weakest claims submitted to the settlement and the strongest opting out and seeking recovery at trial or in private settlement. In binding settlements, they may result in a commons problem, requiring dramatic reductions in payment that effectively transfer recoveries from those with intrinsically strong claims to those with weak claims.

This Article evaluates …

The Ghost That Slayed The Mandate, Kevin C. Walsh

Law Faculty Publications

Virginia v. Sebelius is a federal lawsuit in which Virginia has challenged President Obama's signature legislative initiative of health care reform. Virginia has sought declaratory and injunctive relief to vindicate a state statute declaring that no Virginia resident shall be required to buy health insurance. To defend this state law from the preemptive effect of federal law, Virginia has contended that the federal legislation's individual mandate to buy health insurance is unconstitutional. Virginia's lawsuit has been one of the most closely followed and politically salient federal cases in recent times. Yet the very features of the case that have contributed …

It's About Time, David Frisch

Law Faculty Publications

This Article critically evaluates the view widely held by courts that contract claims for lost leisure or personal time do not justify compensation. The thesis of this Article is that while the conventional judicial wisdom may be correct about some forms of nonpecuniary loss, it is entirely wrong regarding lost time. After setting aside assumptions, I show that traditional arguments against this form of recovery are deeply flawed Most importantly, I rely on the recognition of hedonic damages by forensic economists to debunk the myth that loss of time is no more than an everyday aspect of life not worthy …

Insurance And Cultural Perspectives On Katrina, Jeffrey E. Thomas

Faculty Works

No abstract provided.

Salinger V. Colting, James Marshall Spector

NYLS Law Review

No abstract provided.

Bryant V. Media Right Productions, Inc., Molly Nehring

NYLS Law Review

No abstract provided.

A Moot Issue? Rethinking Holocaust Era Restitution Of Jewish Confiscated Personal Property In Poland, Lara Weissman

Cardozo Journal of Conflict Resolution

Part I of this note will recount the historical events in Poland that resulted in the massive and ruthless appropriation of Jewish property, not only by the Nazis and the Communist regime, but also by non-Jewish Poles. The inadequate restitution policies following Poland's independence will then be explored, demonstrating Poland's unwillingness to deal with the theft that occurred within its borders, instead favoring sheer dismissal of the issue in the hopes of concentrating on rebuilding its war-torn country.

Part IIA will explore Poland's continued refusal to create and enforce policies that would assist in the restitution process, marking Poland as …

Chinese Use Of Administrative Proceedings To Enforce Intellectual Property Rights: Evaluating And Improving Adr In China, Simeng Han

Cardozo Journal of Conflict Resolution

Since its entry into the World Trade Organization ("WTO") in 2001, China has significantly reformed its legal system in order to enforce its commitment to protecting Intellectual Property ("IP"). Yet, there remains a lingering suspicion of the actual level of Chinese commitment-as indicated by continuous infringement claims from nations such as the United States. With an increasing number of disputes loading the court dockets and putting pressure on judges, and given China's "deep-rooted historical preference for informal and non-adversarial means of dispute resolution," there is enormous potential for further development of ADR in this field. Indeed, the culturally preferable way …

Switching To Prophylactic Injunctions, Tracy A. Thomas

Akron Law Faculty Publications

This essay highlights the significance of John Golden’s work on patents to the field of Remedies more generally. In his important new article, Injunctions as More (or Less) Than ‘Off Switches’: Patent-Infringement Injunctions’ Scope (Texas Law Review), Golden proves my thesis: prophylactic injunctions are, and should be, common, normal types of equitable relief. His careful and detailed analysis of the type and frequency of injunctions issued in patent infringement cases exposes the myth that prophylaxis is illegitimate. Steeped in details of patent law, Golden’s work nevertheless contributes significantly to the broader transsubstantive questions of the metes and bounds of equitable …

Copyright Harm And Injunctions, Christina Bohannan

Cardozo Arts & Entertainment Law Journal

No abstract provided.

Suing Courts, Frederic Bloom, Christopher Serkin

Publications

This Article argues for a new and unexpected mechanism of judicial accountability: suing courts. Current models of court accountability focus almost entirely on correcting legal errors. A suit against the court would concentrate on something different--on providing transition relief, by way of legal remedy, to those bearing the heaviest burdens of desirable legal change. These suits may at first appear impossible. But suing courts is conceptually rational and mechanically reasonable, a tool that eases legal transitions while navigating the many hurdles modern doctrine puts in the way. This Article sets out the first complete account of how, where, and why …

Public-Private Approaches To Mass Tort Victim Compensation: Some Thoughts On The Gulf Coast Claims Facility, Myriam E. Gilles

Articles

No abstract provided.

The Law Of Medical Misadventure In Japan, Robert B. Leflar

Chicago-Kent Law Review

This paper offers a comprehensive overview of Japanese law and practice relating to iatrogenic (medically-caused) injury, with comparisons to other nations' medical law systems. The paper addresses criminal sanctions for Japanese physicians' negligent and illegal acts; civil law principles of substantive law and related issues of procedure, practice, and liability insurance; and administrative measures including health ministry programs aimed at expanding and improving the quality of peer review within Japanese medicine, and a recently implemented no-fault compensation system for birth-related injuries.

Among the paper's findings are these. Criminal and civil actions increased rapidly after highly publicized medical error events at …

Brief Of Reporter And Advisers To Restatement (Third) Restitution And Unjust Enrichment, As Amici Curiae In Support Of Respondent: First American Financial Corp. V. Edwards, Doug Rendleman, Douglas Laycock

Scholarly Articles

Restitution may be a casualty in a collision with the constitutional law of standing. Article III is traditionally said to require an “injury in fact” for standing to be a plaintiff in federal court. Edwards, who alleges that First American paid a bribe or kickback in violation of the federal Real Estate Settlement Procedures Act, seeks to recover the statutory penalty. Defendant argues that even if it violated the Act, Edwards suffered no “injury in fact.” Our amicus brief in support of Edwards alerts the Supreme Court to the many restitutionary claims either for a wrongdoer’s profits or to set …

Efficient Breach Of International Law: Optimal Remedies, 'Legalized Noncompliance,' And Related Issues, Eric A. Posner, Alan O. Sykes

Michigan Law Review

In much of the scholarly literature on international law, there is a tendency to condemn violations of the law and to leave it at that. If all violations of international law were indeed undesirable, this tendency would be unobjectionable. We argue in this Article, however that a variety of circumstances arise under which violations of international law are desirable from an economic standpoint. The reasons why are much the same as the reasons why nonperformance of private contracts is sometimes desirable- the concept of "efficient breach," familiar to modern students of contract law, has direct applicability to international law. As …

Through The Looking Glass: Understanding Social Science Norms For Analyzing International Investment Law, Susan Franck, Calvin Garbin, Jenna Perkins

Scholarly Articles in Law Reviews & Journals

When social science methods are being employed in a new context — such as the assessment of international investment law — there is value in exploring the underlying assumptions and normative baselines of the enterprise. This article and response address critiques about the methodology of an article in the Harvard International Law Journal by: (1) describing the value of social science in international investment law; (2) replicating the research using new methodologies to conduct more than 20 new tests that were still unable to ascertain the existence of a reliable relationship between development status and outcomes on the basis of …

Interpreting Tort Law, Emily Sherwin

Cornell Law Faculty Publications

No abstract provided.

Introduction: Mission Accomplished, Brandon Hasbrouck

Washington and Lee Law Review

No abstract provided.

Three Restatements Of Restitution, Andrew Kull

Washington and Lee Law Review

No abstract provided.

Moses V. Macferlan 250 Years On, W. M. C. Gummow

Washington and Lee Law Review

The continued influence of this decision of Lord Mansfield upon the scope of the action for money had and received is apparent in the Restatement (Third) of Restitution & Unjust Enrichment, recently adopted by the American Law Institute. The basic proposition that the action lies where the money was received in such circumstances that retention would offend equity and good conscience informs the Restatement. In particular, over definition and dissection of the defence of "change of position" by reference to "good faith" of the recipient diverts attention from the question whether in the circumstances of the case it would be …

Intent To Charge For Unsolicited Benefits Conferred In An Emergency: A Case Study In The Meaning Of "Unjust" In The Restatement (Third) Of Restitution & Unjust Enrichment, Louis E. Wolcher

Washington and Lee Law Review

This Article is a legal and jurisprudential case study that attempts to shed light on the use of the word "unjust" in the law of restitution as it has been reinterpreted by the new Restatement (Third) of Restitution & Unjust Enrichment. The particular case studied is the legal meaning of the term "intent to charge" in the law’s treatment of claims for unsolicited benefits conferred in emergencies. The author conducts a thought experiment involving the use of a sworn "Declaration of Intent to Charge for Benefits Conferred" to illustrate certain ambiguities and difficulties in the way the new Restatement deals …

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

Washington and Lee Law Review

No abstract provided.

The Restitution Revival And The Ghosts Of Equity, Caprice L. Roberts

Washington and Lee Law Review

A restitution revival is underway. Restitution and unjust enrichment theory, born in the United States, fell out of favor here while surging in Commonwealth countries and beyond. The American Law Institute’s (ALI) Restatement (Third) of Restitution & Unjust Enrichment streamlines the law of unjust enrichment in a language the modern American lawyer can understand, but it may encounter unintended problems from the law-equity distinction. Restitution is often misinterpreted as always equitable given its focus on fairness. This blurs decision making on the constitutional right to a jury trial, which "preserves" the right to a jury in federal and state cases …

A Relational Critique Of The Third Restatement Of Restitution § 39, David Campbell

Washington and Lee Law Review

In the Restatement (Third) of Restitution and Unjust Enrichment, breach of contract is regarded as a "wrong," and, in response to the perceived shortcomings of the current law of remedies based on compensatory damages, the proposed Section 39 seeks to provide for disgorgement of profit as an alternative remedy for "opportunistic" breach. In so doing, the Restatement is substantially repeating the argument for the extension of restitutionary remedies for breach of contract which recently has had great success in the Commonwealth. The restitutionary criticism of compensatory damages is, at root, that those damages are unable to prevent important forms of …

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 …

Common Law And Equity In R3rue, Lionel Smith

Washington and Lee Law Review

One of the most remarked-upon achievements of the first Restatement of the Law of Restitution was the consolidation into a single treatment of all of the law that concerned the Reporters, whether it came from common law or Equity. In the Restatement (Third) of Restitution & Unjust Enrichment (R3RUE), there was initially an even more dramatic idea: to restate the law without even any reference to the historical distinction between common law and Equity. In the final product, however, there are several references to the peculiarly Equitable origins of certain juridical solutions to the problems addressed by this Restatement. The …

A Sin Of Admission: Why Section 62 Should Have Been Omitted From The Restatement (Third) Of Restitution & Unjust Enrichment, Adam Rigoni

Washington and Lee Law Review

No abstract provided.

Proprietary Remedies In Insolvency: A Comparison Of The Restatement (Third) Of Restitution & Unjust Enrichment With English And Commonwealth Law, Anthony Duggan

Washington and Lee Law Review

This Article deals with proprietary remedies, in particular the constructive trust, and their application in the defendant’s bankruptcy. The Article offers a comparative analysis of English and Commonwealth law with the relevant parts of the recently completed Restatement (Third) of Restitution & Unjust Enrichment. The discussion is organized around five simple hypotheticals, each representing issues which courts in England and other parts of the Commonwealth have found particularly troubling: mistaken payments; misrepresentation in the context of land dealings; misrepresentation in other contexts; breach of fiduciary obligation; and specific performance. The aim is to identify the likely outcome in each case …

Translocations And Inertia, W. F. Young

Washington and Lee Law Review

No abstract provided.