Legal Remedies Commons^™

Irreparability Irreparably Damaged, Doug Rendleman

Scholarly Articles

No abstract provided.

Florida's Equal Access To Justice Act: How The Courts And Doah Have Interpreted It, Mary W. Chaisson

Florida State University Law Review

No abstract provided.

Contract Warranties And Remedies: A Comprehensive Survey Of The Creation, Modification And Exclusion Of Contract Warranties And Remedies For Attorneys And Contracting Professionals, Joseph J. Corey Jr.

Campbell Law Review

This article discusses the types of warranties and remedies that are available by contract and by operation of the law. It also discusses how these warranties and remedies can be limited, waived, and excluded by contract language, actions of the parties, and operation of the law.

Interpretation Of The Statutory Modification Of Joint And Several Liability: Resisting The Deconstruction Of Tort Reform, Gregory C. Sisk

Seattle University Law Review

This Article defends RCW 4.22.070 and opposes the deconstruction of legislative tort reform. The Article’s premise is that the legislature did indeed intend to accomplish a significant reform of the liability system and to take a long, purposeful stride toward the implementation of comparative fault as applied to all parties in tort litigation. The Article concludes that the legislature adopted language that adequately, if sometimes imperfectly, achieves that purpose. The Article discusses the following: the meaning of “fault” as applicable through RCW 4.22.070; the nature of the entities to whom fault must be allocated; the responsibility for raising the culpability …

From One Dollar To $2.4 Million: Narrowing The Spectrum Of Damage Awards In Fair Housing Cases Through Basic Tort Litigation Tactices, 26 J. Marshall L. Rev. 29 (1992), Larry R. Rogers, Kelly N. Kalus

UIC Law Review

No abstract provided.

A Needed Change In The Rules Of Baseball, Lewis Kurlantzick

Faculty Articles and Papers

No abstract provided.

A Bitter Inheritance: East German Real Property And The Supreme Constitutional Court's "Land Reform" Decision Of April 23, 1991, Jonathan J. Doyle

Michigan Journal of International Law

This article briefly examines the principal expropriatory measures undertaken between 1945 and 1989, the agreements between the two German governments relating thereto, and the divisive constitutional issues raised by this fusion of two antithetical legal systems in the area of property law. The text concludes with an analysis of the German Supreme Court's "Land Reform" decision and the juridical controversy surrounding it.

Direct Actions For Emotional Harm: Is Compromise Possible?, Julie A. Davies

Washington Law Review

While most courts and commentators acknowledge that emotional injury resulting from negligence may merit compensation, they share the conviction that some limits must be placed on such claims. They identify two basic policy rationales as the justifications for limiting claims for emotional harm: (1) the desire to ensure that a defendant's liability for negligence is not disproportionate to his or her fault, and (2) the desire to prevent litigation of trivial or fraudulent claims. This Article argues that the two rules most frequently applied by courts to effectuate limitations on recovery—the "zone-of-danger" rule and the "foreseeability-plus-serious-injury" rule—suffer from serious deficiencies. …

The Need For An Effective Liability Régime For Damage Caused By Debris In Outer Space, James P. Lampertius

Michigan Journal of International Law

The purpose of this Note is to point out the failure of the current liability system to provide for an adequate legal mechanism of recovery for damage or loss of life caused by collisions with space debris. International responsibility for national activities in outer space is a fundamental principle of international law. Yet a claim attributed to damage by space debris is "difficult, if not impossible, to prove" under the current liability system. This Note analyzes the major difficulties in establishing liability for damage and presents a number of solutions to overcome these obstacles to recovery.

Altruistic Communities And The Responsible Use Of Legal Power, John W. Ragsdale Jr

Faculty Works

When an animate, conscious body - individual, collective, economic or political - is imbued with a strong central vision or focus, the ongoing actions of the body automatically become coordinated and subordinated to the dictates of that core imagery. When the center is affirmative and qualitative, then the body has a distinct capacity for self-sufficiency, endurance, and equilibrium. If, however, the central focus is negative or linear, then the capacity for internal homeostasis is greatly lessened. A core of fear, anger, or endless material craving can prompt the exercises of power that herein will be called irresponsible. Such exercises of …

Redefining The Family: Recognizing The Altruistic Caretaker And The Importance Of Relational Needs, Beverly Horsburgh

University of Michigan Journal of Law Reform

Part I of this Article describes the general nonrecognition of altruism in the law. It then focuses on contract law, discussing cases involving parties who cohabitate without formalizing their relationship in a marriage, and those who are not sexually intimate but are nevertheless interrelated members of an extended family. I argue that when a relationship ends, a caretaker becomes aware of her sacrifice and effort on behalf of another and experiences a sense of loss. However, recovery in contract requires the perverse recharacterization of the parties as self-seeking strangers impersonally bargaining over market services in a commodity exchange. Courts indulge …

The Tort Of Bad Faith In First-Party Insurance Transactions: Refining The Standard Of Culpability And Reformulating The Remedies By Statute, Roger C. Henderson

University of Michigan Journal of Law Reform

This Article explores the common-law and statutory background of the tort of bad faith in first-party insurance situations analyzes the varying standards of culpability that have been developed by the courts and suggests a uniform statutory solution to the problems created by the varying standards. The statute also tailors the remedies more closely to the particular type of insurer wrongdoing. The proposed remedies recognize the dual nature of the insurer-insured relationship, that is, one based upon contract and tort concepts. Such a statute would eliminate many of the ambiguities and other deficiencies in the common law of those states that …

Awarding Punitive Damages In Securities Industry Arbitration: Working For A Just Result, Anthony Michael Sabino

University of Richmond Law Review

It is often said that the business of America is business, and probably the best exemplifications of that old truism are the nation's stock exchanges. To be sure, not only stock, but bonds, options, commodities, futures, and a whole plethora of instruments are traded daily in exchanges large and small, in a seamless web straddling the country, if not the world.

Franklin V. Gwinnett County Public Schools: The Implication Of Remedies For An Implied Cause Of Action, Ellen F. Firsching

University of Richmond Law Review

According to the common law doctrine of ubi jus, ibi remedium, where there is a right, there is a remedy. The United States Supreme Court has long recognized the validity of this doctrine. Traditionally, the Court was very liberal in recognizing private rights of action, and granting injunctive and monetary relief for violations of constitutional and statutory rights in the absence of explicit congressional authorization. In Bell v. Hood, the Supreme Court stated: "[W]here federally protected rights have been invaded, it has been the rule from the beginning that courts will be alert to adjust their remedies so as to …

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 …

Judicial Activism Constructs Lenders' Nightmare - Embree Construction Group, Inc. V. Rafcor, Inc. And United Carolina Bank, Philip A. Mullins Iv

Campbell Law Review

This Note will offer a brief history of the case law developed prior to Embree and will analyze the rationale used by the North Carolina Supreme Court in order to make their determination to grant an equitable remedy in this particular case. Next, this Note will examine the holding in Embree and will advance the proposition that the holding in that case is a departure from pre:existing law and cannot be easily reconciled with the case law developed in earlier North Carolina decisions and decisions of Federal Courts applying North Carolina law. Finally, this Note will outline the potential problems …

Book Review. The Premature Burial Of The Irreparable Injury Rule, Gene R. Shreve

Articles by Maurer Faculty

No abstract provided.

The Remedial Problems Of Stallone V. United States And Jenkins V. Missouri, Candace Kovacic-Fleischer

Scholarly Articles in Law Reviews & Journals

INTRODUCTION: The remedies section of the Association of American Law Schools decided to hold a panel discussion at its annual meeting in January 1991 on two 1990 Supreme Court cases, Spallone v. United States' and Missouri v. Jenkins, because these cases raise some troubling questions about the implementation of constitutional remedies. Not surprisingly, the State and Local Government Section was also planning a panel discussion about the same cases because they involve federal courts in local governmental decisions. Thus, the two Sections combined their programs into a double, joint session, the proceedings of which are printed here. This article introduces …

Murdering The Spirit: Racism, Rights, And Commerce, Robin West

Georgetown Law Faculty Publications and Other Works

Patricia Williams' The Alchemy of Race and Rights: The Diary of a Law Professor, is an eloquent, profoundly original, and often brilliant collection of interdisciplinary essays and stories concerning the impact of racism and poverty on the human spirit; the historic and continuing role of law and legal institutions in defining, facilitating, and perpetuating those harms; and the possibilities and dangers imminent in the attempt to use law to effect a remedy for them. This is a book that we should celebrate: it reminds us that books are occasionally very, very important, that reading can be transformative, and that writing …

Tort Remedies For Victims Of Domestic Abuse, Douglas D. Scherer

Scholarly Works

This Article discusses the use of intentional tort actions by victims of domestic abuse who seek monetary damages. Part I discusses the phenomenon of domestic abuse, with emphasis on physical and emotional harm and factures that justify punitive and compensatory damage awards. Part II discusses the torts of battery, assault and intentional infliction of emotional distress, and the appropriateness of these actions in domestic abuse cases. Part III discusses the interspousal immunity doctrine and demonstrates the limited extent to which the doctrine bars domestic abuse tort actions. Finally Part IV discusses judicial acceptance of tort actions in domestic abuse cases. …

Fee-Shifting Offers Of Judgment–An Approach To Reducing The Cost Of Litigation, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Distribution Of Damages In Car Accidents Through The Use Of Neural Networks, Lothar Philipps

Cardozo Law Review

After a traffic accident the damage has to be fairly divided among the parties involved, and a ratio has to be determined. There are many precedents for this, and judges have developed catalogues suggesting ratios for common types of accidents.

The problem that "every case is different," however, remains. Many cases have familiar aspects, but also unfamiliar ones. Even if a case is composed of several familiar aspects with established ratios, the question remains as to how these are to be figured into one ratio. The first thought would be to invent a mathematical formula, but such formulae are rigid …

Comment On Nesson, Joseph Gastwirth

Cardozo Law Review

No abstract provided.

Rolling Down The Curtain On "Roll-Ups": The Case For Federal Legislation To Protect Limited Partners, Kenneth R. Hillier

Michigan Law Review

This Note examines roll-ups and the lack of alternatives available to reluctant limited partners. Part I focuses on existing judicial remedies for limited partners, such as injunctions and actions for damages, and explains why these courses of action provide inadequate protection. This Part then reviews recent attempts at statutory protection and points out the shortcomings of these remedies. Part II examines safeguards afforded analogously situated corporate shareholders and sets forth arguments why limited partners should receive similar protection. After demonstrating the need for legislation, Part III suggests a workable structure for this statutory protection. Then, the Note discusses the relative …

"The Eternal Triangles Of The Law": Toward A Theory Of Priorities In Conflicts Involving Remote Parties, Menachem Mautner

Michigan Law Review

Anglo-American priority law is premised on a doctrinal-derivational approach under which "triangle conflicts" are supposed to be resolved on the basis of the legal rights that the intermediate, wrongdoing party could have transferred from the first-in-time competing party to the second-in-time competing party. In Part I, I outline the major propositions of this approach. I argue that in focusing on the intermediate party, the doctrinal-derivational approach fails to address the primary consideration relevant to resolving triangle conflicts, namely the conduct of the two remote claimants involved in the conflict. In Part II, I focus on the two remote parties involved …

Looking For The Perfect Enforcement Remedy: Old Wine In New Bottles Or: Have I Seen This Movie Before?, James Treadway

Washington and Lee Law Review

No abstract provided.

Debt-For-Nature Swaps: Environmental Investments Using Taxpayer Funds Without Adequate Remedies For Expropriation, Rosanne Model

University of Miami Law Review

No abstract provided.

Oklahoma V. Epa: Does The Clean Water Act Provide An Effective Remedy To Downstream States Or Is There Still Room Left For Federal Common Law?, Maria V. Maurrasse

University of Miami Law Review

No abstract provided.

Market-Share Liability After Hymowitz And Conley: Exploring The Limits Of Judicial Power, Christopher J. Mcguire

University of Michigan Journal of Law Reform

This Note surveys the development of market-share liability and examines the limits on the power of state and federal courts to impose liability on defendants through market-share liability. Part I examines briefly the development of market-share liability in the early 1980s. It then explores how the New York Court of Appeals extended market-share liability in Hymowitz v. Eli Lilly and explores this case's ramifications. Part I also draws on a recent Florida case, Conley v. Boyle Drug Co., for further insight into the problems surrounding market-share liability litigation. Part II argues that jurisdictional limitations, such as standing to sue …

The Economics Of Discrimination: The Three Fallacies Of Croson, Martin J. Katz

Sturm College of Law: Faculty Scholarship

In Part I, this Note examines the effects of discrimination in the marketplace to suggest a connection between current racial disparities" and past "no-fault" discrimination. Part II demonstrates why race-neutral policies are likely to prove ineffective for reducing these disparities. Finally, Part III argues that competitive, race-conscious affirmative action is unlikely to create a "moral hazard" and that the burden placed on nonminorities by such a program is justifiable.