Legal Remedies Commons^™

Beyond Protective Orders: Interdisciplinary Domestic Violence Clinics Facilitate Social Change, Sara R. Benson

Cardozo Journal of Equal Rights & Social Justice

The article argues that interdisciplinary domestic violence clinics in law schools offer a transformative approach to addressing domestic violence by integrating legal and extra-legal services. These clinics not only provide holistic support to survivors but also empower them to advocate for systemic change. By fostering collaboration among law students, social workers, psychologists, and community organizations, such clinics address the multifaceted needs of survivors while training future lawyers to approach legal issues with a broader societal perspective. The article highlights the potential of these clinics to drive social progress by amplifying the voices of survivors and influencing legal and community responses …

Corrective Justice And Liability For Global Warming, Matthew D. Adler

Faculty Scholarship

No abstract provided.

Using Comparative Torts Materials To Teach First-Year Torts, Anthony J. Sebok

Articles

The article argues that incorporating comparative torts materials, particularly from European jurisdictions such as Germany and Italy, can effectively enhance the teaching of tort damages in first-year law courses. This approach is not about adopting a comparative curriculum but using these materials to provide deeper insights into American tort law.

Consequences Of Power, Tamara Relis

Scholarly Works

This Article challenges a basic premise that litigants and their attorneys broadly understand and desire similar things from litigation-track mediation processes. In providing new empirical research from medical malpractice cases, I offer disconcerting evidence of the surprising degree to which perceptions and meanings ascribed to these litigation-track processes are not only diverse, but frequently contradictory. I demonstrate that notwithstanding their different allegiances, lawyers on all sides of cases have correspondingly similar understandings of the meaning and purpose of litigation-track mediations. At the same time, I show how plaintiffs and defendants have the same understandings and visions of what mediation is …

If You Prompt Them, They Will Rule: The Warranty Of Habitability Meets New Court Information Systems, Mary Zulack

Faculty Scholarship

A recent conference on housing rights invited participants to think about the impacts, actual and potential, of the judge-made doctrine of the implied warranty of habitability in residential tenancies. This essay focuses on the warranty, and suggests establishing technology systems for judges to help them give new
life to the doctrine and thereby to accelerate actual repair of rental housing through court mandates.

The conference attendees seemed to agree that when trial judges are presented with claimed breaches of the warranty of habitability, they have not, on the whole, used the doctrine to order that repairs actually be effectuated. They …

A Critique Of The Efficient Performance Hypothesis, Jody S. Kraus

Faculty Scholarship

The classic economic justification of contract law’s default remedy of expectation damages is grounded on the efficient breach hypothesis: that promisors should be permitted and encouraged to breach when the net gains from breach exceed the net gains from performance. Expectation damages ensure that all and only efficient breaches will occur because promisors will find breach profitable only if its benefits exceed the value of performance to the promisee. The efficient breach hypothesis, and the defense of expectation damages that rests on it, has long been criticized for being inconsistent with the moral intuition that promisors necessarily forfeit their right …

From The Dead Hand To The Living Dead: The Conundrum Of Charitable-Donor Standing, Evelyn Brody

Georgia Law Review

This Article examines the current confused state of the law that applies to the private enforcement of restricted charitable gifts, and describes the first steps toward a tailored legal regime that appears in the American Law Institute's draft project on Principles of the Law of Nonprofit Organizations,for which this author is reporter. That regime addresses not only standing, but also proposals for notification of the attorney general, time limits on private (but not attorney general) enforcement, and a circumscription of appropriate remedies in order to protect the charity. Several of the issues, however, will likely require a legislative solution.

A Mystery Of Motherhood: The Legal Consequences Of Insufficient Research On Postpartum Illness, Lindsey C. Perry

Georgia Law Review

Postpartum illness is a real and serious affliction, suffered by many mothers throughout the country. For decades, courts have struggled with the issue of how postpartum illness fits into the current framework for legal insanity. Recent publicity of the Andrea Yates trial and her subsequent acquittal brought postpartum psychosis to the attention of the American public. This Note explores the background of postpartum psychosis and its treatment in U.S. courts. It discusses the possibilities for addressing postpartum psychosis in criminal proceedings and proposes that further research and understanding are necessary to provide justice for female defendants afflicted with postpartum psychosis. …

Trans Fat: Can New York City Save Its Citizens From This "Metabolic Poison"?, Elizabeth Y. Spivey

Georgia Law Review

Trans fat was developed by chemists at the turn of the century and became an increasingly large part of the American diet. Trans fat in the form of partially hydrogenated vegetable oil now makes up 2% of all calories consumed in the United States. In the past two decades, studies have shown that artificially created trans fat increases cholesterol and increases the risk of coronary heart disease, heart attack, and type II diabetes. In response to these health concerns, New York City's Board of Health voted to ban trans fat from restaurant fare in December 2006. Other cities and local …

Precontractual Liability And Preliminary Agreements, Alan Schwartz, Robert E. Scott

Faculty Scholarship

For decades, there has been substantial uncertainty regarding when the law will impose precontractual liability. The confusion is partly due to scholars' failure to recover the law in action governing precontractual liability issues. In this Article, Professors Schwartz and Scott show first that no liability attaches for representations made during preliminary negotiations. Courts have divided, however, over the question of liability when parties make reliance investments following a "preliminary agreement." A number of modern courts impose a duty to bargain in good faith on the party wishing to exit such an agreement. Substantial uncertainty remains, however, regarding when this duty …

A Complete Property Right Amendment, John H. Ryskamp

ExpressO

The trend of the eminent domain reform and "Kelo plus" initiatives is toward a comprehensive Constitutional property right incorporating the elements of level of review, nature of government action, and extent of compensation. This article contains a draft amendment which reflects these concerns.

Common Law Property Metaphors On The Internet: The Real Problem With The Doctrine Of Cybertrespass, Shyamkrishna Balganesh

Michigan Telecommunications & Technology Law Review

The doctrine of cybertrespass represents one of the most recent attempts by courts to apply concepts and principles from the real world to the virtual world of the Internet. A creation of state common law, the doctrine essentially involved extending the tort of trespass to chattels to the electronic world. Consequently, unauthorized electronic interferences are deemed trespassory intrusions and rendered actionable. The present paper aims to undertake a conceptual study of the evolution of the doctrine, examining the doctrinal modifications courts were required to make to mould the doctrine to meet the specificities of cyberspace. It then uses cybertrespass to …

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

ExpressO

This article contributes to the broad debate over “adaptive preferences” in law, economics, and political philosophy by addressing an important ongoing controversy in tort law. Hedonic damages compensate for the lost enjoyment of life that results from a tortious injury. Lawyers seeking hedonic damages in personal injury cases emphasize their clients’ new status as compromised and damaged persons, and courts frequently uphold jury verdicts awarding hedonic damages to individuals who experienced disabling injuries based on a view that disability necessarily limits one’s enjoyment of life. This view is consonant with a general societal understanding of disability as a tragedy and …

A Defense Of Structural Injunctive Remedies In South African Law, Danielle E. Hirsch

ExpressO

This Article argues that the use of structural injunction remedies by South African courts is appropriate, and, in light of demonstrated government inaction, often necessary in order to give meaning to the protection of socio-economic rights, which is mandated by their Constitution. The Article draws upon numerous United States judicial decisions where structural injunctions have been successfully implemented to address systemic institutional inaction and violations of the equal protection and due process clauses of the United States Constitution. In numerous instances, the South African government has not acted to effectively give meaning to the socio-economic rights which were broadly declared …

Practice What You Preach: How Restorative Justice Could Solve The Judicial Problems In Clergy Sexual Abuse Cases, Diana L. Grimes

Washington and Lee Law Review

No abstract provided.

Finding Nemo: Rediscovering The Virtues Of Negotiability In The Wake Of Enron, Adam J. Levitin

ExpressO

Creditors have long understood that any claims they submit for repayment in a bankruptcy might be valid, but subject to subordination in the order of payment of the bankruptcy estate’s limited funds if the creditor behaved inequitably as the debtor failed. A groundbreaking opinion in Enron’s on-going bankruptcy has expanded the practice of equitable subordination far beyond its traditional reach. According to the court, buyers of bankruptcy claims are now subject to subordination, not just for their own conduct, but also for conduct of previous owners of the claims, regardless of whether the conduct related to the claims.

In a …

Reassessing Damages In Securities Fraud Class Actions, Elizabeth C. Burch

ExpressO

No coherent doctrinal statement exists for calculating open-market damages for securities fraud class actions. Instead, courts have tried in vain to fashion common-law deceit and misrepresentation remedies to fit open-market fraud. The result is a relatively ineffective system with a hallmark feature: unpredictable damage awards. This poses a significant fraud deterrence problem from both a practical and a theoretical standpoint.

In 2005, the Supreme Court had the opportunity to clarify open-market damage principles and to facilitate earlier dismissal of cases without compensable economic losses. Instead, in Dura Pharmaceuticals v. Broudo, it further confused the damage issue by (1) perpetuating the …

Incentive Awards To Class Action Plaintiffs: An Empirical Study, Theodore Eisenberg, Geoffrey P. Miller

Cornell Law Faculty Publications

Incentive awards to representative plaintiffs in class actions have been the focus of recent law reform efforts and have generated inconsistent case law. But little is known about such awards. This study of 374 opinions from 1993 to 2002 finds that awards were granted in about 28 percent of settled class actions. The rate of awards varied by case category as follows: consumer credit actions 59 percent, employment discrimination cases 46 percent, antitrust cases 35 percent, securities cases 24 percent (before the Private Securities Litigation Reform Act of 1995 limited awards), and corporate and mass tort actions less than 10 …

No Relief: Understanding The Supreme Court's Decision In Town Of Castle Rock V. Gonzales Through The Rights/Remedies Framework, Tritia L. Yuen

American University Law Review

No abstract provided.

How The Other Half Lives (Revisited): Twenty Years Since Midler V. Ford - A Global Perspective On The Right Of Publicity, Alain Lapter

ExpressO

For celebrities, name and image are, arguably, two of their most valuable assets. From headlining a movie, to starring in a commercial, to endorsing a product, a celebrity’s persona is potentially worth thousands to millions of dollars. However, this intangible commodity’s worth is often siphoned off by those who appropriate a celebrity’s name or image without authorization or remuneration, thus potentially decreasing the property’s value. In order to stifle this unjust enrichment, celebrities greatly desire the absolute right to control the commercial exploitation of their name and likeness.

In this article, I examine the current state of the right of …

Bond Repudiation, Tax Codes, The Appropriations Process And Restitution Post-Eminent Domain Reform, John H. Ryskamp

ExpressO

This brief comment suggests where the anti-eminent domain movement might be heading next.

The Ineffectiveness Of Capped Damages In Cases Of Employment Discrimination: Solutions Toward Deterrence, Vanessa M. Ruggles

ExpressO

Although the Civil Rights Act of 1991 helped victims of employment discrimination in a variety of ways, including the authorization of jury trials and the accompanying possibility of compensatory and punitive damages, the caps Congress placed on damages do not serve the purpose of deterrence. Because the caps are based on the number of employees a defendant employer has, the goal of protecting small businesses from exorbitant damages is accomplished. However, because the top category of the caps is “500 or more” employees, giant corporations escape meaningful awards. This article identifies the problem citing specific examples, and proposes several solutions …

Reverse Bifurcation, Dru Stevenson

ExpressO

Reverse bifurcation is a trial procedure in which the jury determines damages first, before determining liability. The liability phase of the trial rarely occurs, because the parties usually settle once they know the value of the case. This procedure is already being used in thousands of cases – nearly all the asbestos and Fen-phen cases – but this is the first academic article devoted to the subject. This article explains the history of the procedure and analyzes why it encourages settlements, simplifies jury instructions, and produces better outcomes for the parties.

Treaties In U.S. Courts: Judge Bork's Anti-Originalist Revolution, Kay Graeff, David Sloss

ExpressO

Two cases currently pending before the Supreme Court present an opportunity for the Court to resolve a conflict between two competing models of treaty adjudication: the Marshall model and the Bork model. The Marshall model applies a presumption in favor of judicial remedies for violations of individual treaty rights. The Bork model applies a presumption against private enforcement of treaties in U.S. courts.

During the first fifty years of U.S. constitutional history, the Supreme Court consistently applied the Marshallian presumption in favor of judicial remedies. As a judge on the D.C. Circuit in 1984, Robert Bork created the Borkian presumption …

Good Faith, State Of Mind, And The Outer Boundaries Of Director Liability In Corporate Law, Christopher M. Bruner

ExpressO

The Delaware General Corporation Law was amended in 1986 to permit shareholder-approved exculpatory charter provisions shielding directors from monetary liability for certain types of fiduciary duty breaches, explicitly excepting breaches of the duty of loyalty and conduct not in "good faith" – evidently distinct concepts in the Delaware legislature’s view. This paper examines the development of corporate fiduciary duty doctrine in Delaware leading up to and following this statutory amendment, focusing particularly on the Delaware courts' evolving conception of the meaning and doctrinal status of good faith. Specifically, the paper argues that Delaware's statutory exculpation regime and good faith case …

The Judgment-Proof Society, Stephen G. Gilles

Washington and Lee Law Review

No abstract provided.

Significant Association Between Punitive And Compensatory Damages In Blockbuster Cases: A Methodological Primer, Theodore Eisenberg, Martin T. Wells

Cornell Law Faculty Publications

This article assesses the relation between punitive and compensatory damages in a data set, gathered by Hersch and Viscusi (H-V), consisting of all known punitive damages awards in excess of $100 million from 1985 through 2003. It shows that a strong, statistically significant relation exists between punitive and compensatory awards, a relation that replicates similar findings in nearly all other analyses of punitive and compensatory damages. H-V's claim that no significant relation exists between punitive and compensatory awards in these data appears to be an artifact of questionable regression methodology.

Mental Health Courts And Title Ii Of The Ada: Accessibility To State Court Systems For Individuals With Mental Disabilities And The Need For Diversion, S. Elizabeth Malloy

Faculty Articles and Other Publications

Access to the judicial system, a fundamental right that has paramount importance in our society, can often present obstacles to people with disabilities in a variety of significant ways. Yet Title II mandates that state and local judicial facilities be accessible to individuals with disabilities. Recent shifts in paradigmatic approaches to special populations such as drug offenders and offenders with mental disabilities have lead to the creation of mental health courts specifically designed to address the needs of the persons with mental disabilities in order to avoid incarceration. Early outcomes in states like Ohio suggest mental health courts may better …

Keep It Simple: An Explanation Of The Rule Of No Recovery For Pure Economic Loss, Anita Bernstein

Faculty Scholarship

No abstract provided.

The Hybrid Class Action As Judicial Spork: Managing Individual Rights In A Stew Of Common Wrong, 39 J. Marshall L. Rev. 231 (2006), Jon Romberg

UIC Law Review

No abstract provided.