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Articles 1681 - 1710 of 2826

Full-Text Articles in Legal Remedies

Procedural Path Dependence: Discrimination And The Civil-Criminal Divide, Julie C. Suk Jan 2008

Procedural Path Dependence: Discrimination And The Civil-Criminal Divide, Julie C. Suk

Articles

Procedural path dependence occurs when the particular features of the procedural system that is charged with enforcing a given legal norm determine the substantive path of that norm. This Article shows how the limits of employment discrimination law in two different national contexts can be explained by procedural dynamics. In France, as in several European countries, employment discrimination law is enforced predominantly in criminal proceedings. French criminal procedure enables the discovery of information necessary to prove the facts of discrimination, whereas the limits of French civil procedure make it impossible for such information to be revealed. As a result, the …

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Market Damages, Efficient Contracting, And The Economic Waste Fallacy, Alan Schwartz, Robert E. Scott Jan 2008

Market Damages, Efficient Contracting, And The Economic Waste Fallacy, Alan Schwartz, Robert E. Scott

Faculty Scholarship

Market damages are the best default rule when parties trade in thick markets: They induce parties to contract efficiently and to trade if and only if trade is efficient, and they do not create ex ante inefficiencies. Courts commonly overlook these virtues, however, when promisors bundle services that are not separately priced. For example, a promisor may agree to pay royalties on a mining lease and later to restore the promisee's property. When the cost of completion is large relative to the "market delta " – the increase in market value – courts concerned with avoiding "economic waste" limit the …

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The Logic Of Legal Remedies And The Relative Weight Of Norms: Assessing The Public Interest In The Tort Reform Debate, Irma S. Russell Oct 2007

The Logic Of Legal Remedies And The Relative Weight Of Norms: Assessing The Public Interest In The Tort Reform Debate, Irma S. Russell

Faculty Works

This article explores the background principles of consistency and proportionality in legal rules and remedies. It identifies the relative strength of the interests of individuals and the public as the key to justifying the remedies available in different areas of law. Understanding the normative guidance of particular legal rules reveals the strength of society's judgment of the interests at stake in different remedies. For example, the principle of consistency generally means that a legal doctrine applying an objective measure of one's interest must apply a like-kind measure to all interests considered, absent some explicit and justifiable basis for different formulations. …

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Taxation Without Duplication: Misattributed Paternity And The Putative Father's Claim For Restitution Of Child Support, Shawn Seliber Sep 2007

Taxation Without Duplication: Misattributed Paternity And The Putative Father's Claim For Restitution Of Child Support, Shawn Seliber

Washington and Lee Journal of Civil Rights and Social Justice

No abstract provided.

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The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman Jul 2007

The Failure Of Economic Interpretations Of The Law Of Contact Damages, Nathan B. Oman

Faculty Publications

The law of contracts is complex but remarkably stable. What we lack is a widely accepted interpretation of that law as embodying a coherent set of normative choices. Some scholars have suggested that either economic efficiency or personal autonomy provide unifying principles of contract law. These two approaches, however, seem incommensurable, which suggests that we must reject at least one of them in order to have a coherent theory. This Article dissents from this view and has a simple thesis: Economic accounts of the current doctrine governing contract damages have failed, but efficiency arguments remain key to any adequate theory …

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Now, Later, Or Never: Applying Asymmetric Discount Rates In Nuisance Remedies And Federal Regulations, Yang Wang Jun 2007

Now, Later, Or Never: Applying Asymmetric Discount Rates In Nuisance Remedies And Federal Regulations, Yang Wang

Michigan Law Review

Part I of this Note reviews recent literature on the need for asymmetric discount rates in cost-benefit analysis. It observes that even though scholars disagree on the precise value of the appropriate discount rate, many agree that future costs and benefits must be discounted at different rates. Part II then constructs a simple model, consisting of two activities competing for the same resource, and analyzes the consequences of asymmetric discounting under this model. This Part proposes that, to maximize the joint social utility, the resource should be time divided between the competing activities rather than permanently allocated to one or …

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Gonzales-Lopez And Its Bright-Line Rule: Result Of Broad Judicial Philosophy Or Context-Specific Principles?, Jacob D. Briggs May 2007

Gonzales-Lopez And Its Bright-Line Rule: Result Of Broad Judicial Philosophy Or Context-Specific Principles?, Jacob D. Briggs

BYU Law Review

No abstract provided.

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As If It Had Never Happened, Arthur Ripstein Apr 2007

As If It Had Never Happened, Arthur Ripstein

William & Mary Law Review

No abstract provided.

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Mandatory Guidelines: The Oxymoronic State Of Sentencing After United States V. Booker, Hon. Graham C. Mullen, J. P. Davis Mar 2007

Mandatory Guidelines: The Oxymoronic State Of Sentencing After United States V. Booker, Hon. Graham C. Mullen, J. P. Davis

University of Richmond Law Review

No abstract provided.

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News Media’S Impact On Perceptions Of The Civil Justice System, Hugh M. Robert Feb 2007

News Media’S Impact On Perceptions Of The Civil Justice System, Hugh M. Robert

ExpressO

With cases in the news like the McDonalds case, it has left the public with a very distorted view of the civil justice system. Information about the civil litigation system is critical because citizens report that the news media is their primary source of information about the court system, an even more important source than contact with the courts themselves. With the general public relying primarily on the news media as their source of information, it is necessary to examine what is being reported and the frequency of covering both sides to the story, the true story.

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Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast Feb 2007

Cold Comfort Pharmacy: Pharmacist Tort Liability For Conscientious Refusals To Dispense Emergency Contraception, Kristen Marttila Gast

ExpressO

The past several years have seen an increasing number of pharmacists refuse to dispense emergency contraception, an effective, post-coital form of contraception, on the grounds that the drug violates their personal beliefs. This Article addresses the impact of those pharmacist refusals under existing principles of tort law. The Article draws on existing pharmacy case law, state-specific refusal clauses, and ethics statements promulgated by professional pharmacy associations to investigate whether pharmacists have a legal duty to dispense emergency contraception, notwithstanding religious or ethical objections. Concluding that in most states, such a legal duty does exist, the Article develops a “wrongful conception” …

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Are All ‘Legal Dollars’ Created Equal?, Doron Teichman, Yuval Feldman Feb 2007

Are All ‘Legal Dollars’ Created Equal?, Doron Teichman, Yuval Feldman

ExpressO

For several decades law and economic scholars have employed the tools of price theory in order to evaluate an array of legal questions ranging from criminal sanctions to contract remedies. This vast body of literature implicitly assumed that all payments made through the legal system are fungible. In other words, just as a dollar paid for a tomato is identical to a dollar paid for a cucumber, so are a dollar paid as a pollution tax to the government and a dollar paid as compensation to the party injured by the pollution. In this study we challenge this assumption, and …

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The Trial Judge's Equitable Discretion Following Ebay V. Mercexchange, Doug Rendleman Jan 2007

The Trial Judge's Equitable Discretion Following Ebay V. Mercexchange, Doug Rendleman

Scholarly Articles

None available.

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Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark G. Boyko, Ryan G. Vacca Jan 2007

Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark G. Boyko, Ryan G. Vacca

Law Faculty Scholarship

Federal Rule of Evidence 407 prohibits the introduction of subsequent remedial measures for the purposes of demonstrating negligence, culpable conduct, or product defect. But the rule breaks down, in application and purpose, when a defendant undertakes the new safety measure after the plaintiff's injury, but before the defendant had knowledge of the loss. Such a situation is not uncommon. Would-be defendants frequently improve their products and product safety for a variety of reasons. Toxic exposure cases, where exposure often predates diagnosis of the injury by a decade or more, represent a prime example of cases where defendants are likely to …

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Full Compensation, Not Overcompensation: Rethinking Prejudgment Interest Offsets In Washington, Aric Jarrett Jan 2007

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 …

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Placing The Commercial And Economic Loss Problem In The Construction Industry Context, 41 J. Marshall L. Rev. 39 (2007), Carl J. Circo Jan 2007

Placing The Commercial And Economic Loss Problem In The Construction Industry Context, 41 J. Marshall L. Rev. 39 (2007), Carl J. Circo

UIC Law Review

No abstract provided.

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Software Development As An Antitrust Remedy: Lessons From The Enforcement Of The Microsoft Communications Protocol Licensing Requirement , William H. Page, Seldon J. Childers Jan 2007

Software Development As An Antitrust Remedy: Lessons From The Enforcement Of The Microsoft Communications Protocol Licensing Requirement , William H. Page, Seldon J. Childers

Michigan Telecommunications & Technology Law Review

An important provision in each of the final judgments in the government's Microsoft antitrust case requires Microsoft to "make available" to software developers the communications protocols that Windows client operating systems use to interoperate "natively" (that is, without adding software) with Microsoft server operating systems in corporate networks or over the Internet. The short-term goal of the provision is to allow developers, as licensees of the protocols, to write applications for non-Microsoft server operating systems that interoperate with Windows client computers in the same ways that applications written for Microsoft's server operating systems interoperate with Windows clients. The long-term goal …

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When Misdemeanors Are Felonies: The Aggravated Felony Of Sexual Abuse Of A Minor, William J. Johnson Jan 2007

When Misdemeanors Are Felonies: The Aggravated Felony Of Sexual Abuse Of A Minor, William J. Johnson

NYLS Law Review

No abstract provided.

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Increasing Safety For Battered Women And Their Children: Creating A Privilege For Supervised Visitation Intake Records, Nat Stern, Karen Oehme Jan 2007

Increasing Safety For Battered Women And Their Children: Creating A Privilege For Supervised Visitation Intake Records, Nat Stern, Karen Oehme

University of Richmond Law Review

No abstract provided.

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Against Irreparable Benefits, Omri Ben-Shahar Jan 2007

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 …

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What Process Is Due In The Adjudication Of Erisa Claims?, 40 J. Marshall L. Rev. 811 (2007), Mark D. Debofsky Jan 2007

What Process Is Due In The Adjudication Of Erisa Claims?, 40 J. Marshall L. Rev. 811 (2007), Mark D. Debofsky

UIC Law Review

No abstract provided.

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Wrongful Birth: The Courts' Dilemma In Determining A Remedy For A Blessed Event, Michael T. Murtaugh Jan 2007

Wrongful Birth: The Courts' Dilemma In Determining A Remedy For A Blessed Event, Michael T. Murtaugh

Pace Law Review

No abstract provided.

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The Investor Compensation Fund, Alicia J. Davis Jan 2007

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 …

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Injunctions In Defamation Cases, Erwin Chemerinsky Jan 2007

Injunctions In Defamation Cases, Erwin Chemerinsky

Faculty Scholarship

No abstract provided.

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Restorative Justice And The Sexual Abuse Scandal In The Catholic Church, Janine Geske Jan 2007

Restorative Justice And The Sexual Abuse Scandal In The Catholic Church, Janine Geske

Cardozo Journal of Conflict Resolution

Thank you for the opportunity to speak to you today. I want to begin by telling you how I got into the restorative justice field. I served as a judge for almost twenty years, and nine of those years were in criminal court. My last assignment before going to the Wisconsin Supreme Court was to preside full-time over sexual assault and homicide cases. During the time I spent as a trial court judge, I regularly taught classes at prisons in Wisconsin. About ten years ago, I became involved in a restorative justice program in the Green Bay Correctional Institution, a …

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Healing And Accountability In The Criminal Justice System: Applying Restorative Justice Processes In The Workplace, Kay Pranis Jan 2007

Healing And Accountability In The Criminal Justice System: Applying Restorative Justice Processes In The Workplace, Kay Pranis

Cardozo Journal of Conflict Resolution

This essay will describe efforts to apply the principles and processes of restorative justice to the criminal justice system in prison as a workplace. The initiative began as a pilot project in one facility when prison staff recognized that they could not effectively work with inmates in a restorative way until they changed their relationships with one another. Based on the positive experience of the pilot project the Minnesota Department of Corrections (MNDOC) has now expanded the availability of restorative processes for staff conflict and unhealthy workplace units to all prison facilities. This model has potential applications in all kinds …

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Hedonic Damages, Hedonic Adaptation, And Disability, Samuel R. Bagenstos, Margo Schlanger Jan 2007

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 …

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Decentralizing The Fight Against Human Trafficking In The United States: The Need For Greater Involvement In Fighting Human Trafficking By State Agencies And Local Non-Governmental Organizations, Shashi Irani Kara Jan 2007

Decentralizing The Fight Against Human Trafficking In The United States: The Need For Greater Involvement In Fighting Human Trafficking By State Agencies And Local Non-Governmental Organizations, Shashi Irani Kara

Cardozo Journal of Equal Rights & Social Justice

The note argues that while the federal government has made significant strides in combating human trafficking through legislation like the Trafficking Victims Protection Act (TVPA), these efforts are insufficient due to the decentralized nature of the crime. It emphasizes the necessity for greater involvement from state agencies and local non-governmental organizations (NGOs) to effectively address the diverse and localized manifestations of trafficking.

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What Are We Comparing In Comparative Negligence?, Paul H. Edelman Jan 2007

What Are We Comparing In Comparative Negligence?, Paul H. Edelman

Vanderbilt Law School Faculty Publications

In tort cases, comparative negligence now is the dominant method for determining damages. Under that method, the jury apportions fault among the parties and assesses damages in proportion to the relative fault assessment. Comparative negligence contrasts with contributory negligence, where any fault attributed to the plaintiff bars recovery. Although comparative negligence routinely governs in tort cases, its most basic feature remains uncertain: how to apportion fault. In this Article, I demonstrate that at least two different methods exist, and that these methods lead to radically different outcomes. I create a framework, building on a traditional model from law and economics, …

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The Judicial Treatment Of Noneconomic Compensatory Damages In The 19th Century, Ronald J. Allen, Alexia Brunet Jan 2007

The Judicial Treatment Of Noneconomic Compensatory Damages In The 19th Century, Ronald J. Allen, Alexia Brunet

Publications

Do high verdicts for tort cases containing noneconomic damages have historical precedent? We present the results of our empirical inquiry into the treatment of noneconomic compensatory damages by the courts from 1800-1900. Using 1,175 tort cases from this era, we show that, notwithstanding constant reiteration of jury discretion over damages, courts tightly controlled awards. In fact, no case prior to 1900 permitted a noneconomic compensatory damages award exceeding $450,000 in current dollars. Logistic regression results reveal that an increase in total monetary damages is positively and significantly related to the probability of reversal when noneconomic damages were claimed, and that …

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