Legal Remedies Commons^™

Nonparty Litigation Holds: Clear To Implement. Complex To Lift., Alexis Bianco-Burrill

Brooklyn Law Review

Legal holds have long been used by parties, and nonparties alike, as a fundamental tool to preserve information that could be needed in litigation. There are a breadth of statutes, case law, and scholarly work clarifying when a party has the duty to preserve documents and therefore issues legal holds under federal law, as well as when nonparties share this same duty. Although the question of when to issue a legal hold has a clear answer, the problem of when a nonparty can lift a litigation hold is much more complex. Often, nonparties who have been requested to preserve documents …

Ethics In Law And The Effects On Mental Health: An Interview Study, Kaitlyn Nyffeler

Theses/Capstones/Creative Projects

On August 2, 1983, The American Bar Association Model Rules of Professional Conduct were adopted by the House of Delegates. This set of rules provides legal professionals with the guidance needed to uphold the rule of law and to preserve justice. In this set of rules, lawyers learn the duties of confidentiality, client relations, diligence, and the overall conduct owed to the courts. Furthermore, these duties can be demanding and oftentimes challenging. Therefore, this study examined the different ethical rules as they apply to lawyers and how these demands can impact their mental health. Interviews were conducted with six lawyers …

Nato Allies On The Brink Of War: The Cause For Implement-Ing A Dispute Resolution Mechanism Within The North Atlantic Treaty, Samantha Solomotis

Brooklyn Journal of International Law

NATO is the largest peacekeeping military alliance in the world and is not yet done growing. Recent events in Ukraine have reinforced the importance of NATO as a defensive alliance. New threats, both internal and external, are emerging. Intra-alliance conflicts over ideological agreements, border disputes, and member contributions put the fate of the organization at risk. To retain its strength as it grows, NATO must develop stronger cohesion between member states to ensure effectiveness and prevent dissolution. This Note uses the recently reignited conflict between Greece and Turkey—NATO members and belligerent neighbors—to demonstrate the pressing need and peacekeeping utility of …

Expectation V. Reality: Practical Problems With The Right Of First Refusal As A Defense Against Eminent Domain, Aerin Christensen

BYU Law Review

In the wake of the U.S. Supreme Court’s decision in Kelo v. New London, many states enacted new laws to protect property owners from eminent domain. One possible defense for property owners is a statutory right of first refusal. In theory, this is a common-sense protection that ensures that if property is not needed for a public use, it is returned to the original owner. Unfortunately, in practice a right of first refusal is not always an effective protection for property owners.

The plaintiff’s experience in the Utah case Cardiff Wales, LLC v. Washington County School District demonstrates Utah’s statutory …

Proportionalities, Youngjae Lee

Notre Dame Law Review Reflection

“Proportionality” is ubiquitous. The idea that punishment should be proportional to crime is familiar in criminal law and has a lengthy history. But that is not the only place where one encounters the concept of proportionality in law and ethics. The idea of proportionality is important also in the self-defense context, where the right to defend oneself with force is limited by the principle of proportionality. Proportionality plays a role in the context of war, especially in the idea that the military advantage one side may draw from an attack must not be excessive in relation to the loss of …

Preliminary Injunctions Prevail Through The Winter Of Buckhannon, Kaitlan Donahue

Northwestern University Law Review

The Civil Rights Attorney’s Fees Awards Act of 1976 allows courts to award attorneys’ fees to the “prevailing party” in any “action or proceeding” enforcing several civil rights-related statutes. Yet, this statute fails to define the term “prevailing party,” leaving the courts to define it over time. The Supreme Court’s piecemeal, vague definitions of “prevailing party” have only complicated the legal landscape and caused more uncertainty for potential plaintiffs and their prospective attorneys. Without the relief offered by recovery of attorneys’ fees, private litigants may be dissuaded from pursuing meritorious litigation due to overwhelming costs of representation, and attorneys may …

We Don't Talk About Insurance (No, No, No!), Anthony J. Sebok

Articles

Kenneth S. Abraham and Catherine M. Sharkey's The Glaring Gap in Tort Theory has a dramatic title. The article, which is about the unheralded and unappreciated role that liability insurance plays in tort, promises to make good on two claims-first, that the major (or a major) "missing piece" in modern tort scholarship is liability insurance, and second, once this missing piece is identified, it is impossible to ever see tort law the same way again.

The Missing Half: Revisiting Monetary Remedies To Redress Racial Segregation, Olatunde C.A. Johnson

Faculty Scholarship

This Essay considers whether courts should have awarded monetary remedies in housing desegregation cases. By examining the relief awarded in public housing desegregation cases brought in United States federal courts between 1966 and 1994, this Essay reveals the limitations of the almost exclusive reliance on forward-looking integration relief as a remedy. The Essay argues that there is a “missing half” of remedies that courts never awarded: compensatory damages for the loss of wealth and opportunity caused by housing segregation. Forward-looking remedies that promised integration have often gone unfulfilled. Understanding these “missing” damages is crucial given recent Supreme Court rulings on …

Emotionally Harmed? It Might Not Matter: An Analysis Of Cummings V. Premier Rehab Keller And Its Implications For Title Ii Of The Americans With Disabilities Act Of 1990, Sotir Zhupa

Cardozo Law Review

On April 28, 2022, the U.S. Supreme Court handed down an opinion that shocked the disability rights community. In Cummings v. Premier Rehab Keller, P.L.L.C., the Court ruled that compensatory damages for emotional distress may not be recovered by claimants who sue for disability discrimination under section 504 of the Rehabilitation Act of 1973 (section 504) and section 1557 of the Patient Protection and Affordable Care Act of 2010..

Cummings involved a woman, Jane Cummings, who is both deaf and legally blind. Because of her disabilities, she communicates through American Sign Language (ASL)—her first and primary language—and cannot communicate …

Inadequate Adequacy?: Empirical Studies On Class Member Preferences Of Class Counsel, Alissa Del Riego, Joseph Avery

Utah Law Review

Class members to date have been completely sidelined in class litigation. Representational notice is one way to provide them with a voice and a seat at the table (albeit a distant one). However, we note that expressing unmandated preferences does not solve the agency problem that exists in these actions, nor does it guarantee that class counsel is necessarily operating in class members’ best interests during the course of the litigation or in any settlement, even armed with useful ex ante information. Much is left to be explored as to whether class members are satisfied with the representation they received …

A New Private Law Of Policing, Cristina Carmody Tilley

Brooklyn Law Review

American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in …

Buffer Zones Through The Lens Of Golf: A Negligence Case Content Analysis, Natalie Bird, Merry Moiseichik

Public Policy Faculty & Graduate Student Publications and Presentations

Buffer zones are a risk management strategy used within sport and recreation to protect participants and spectators from injury. Within the recreational golf sector, buffer zone standards do not exist. Recreational golf courses serve a wide range of customers in terms of age, skill level, and experience. A legal case content analysis of 1,561 golf negligence lawsuits answered research questions related to locations of incidents, circumstances, and injuries or damages that resulted from errant golf shots. A Westlaw search provided 133 cases within the scope of this study, 85 of which could have been possibly prevented with proper buffer zones. …

No Need To Reinvent The Wheel: The Positive Relationship Between Green Technology And Patent Enforcement, Addison S. Fowler

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Faculty Handbook As Contract, Karen Halverson Cross

Cardozo Law Review

Colleges and universities, like other employers, typically have in place policies that govern the employment relationship with their faculty. Many such policies—policies against employee misconduct or policies on accommodations for persons with disabilities—are comparable to what employees might encounter outside of academia. Most higher education institutions also have in place policies that are more unique to academia, such as policies establishing shared governance bodies, affirming academic freedom as a core value, or outlining procedures on the granting and revocation of faculty tenure. These faculty policies may be aggregated in a faculty handbook, published separately on the institution’s web site, or, …

Windward Woes: The Misalignment Of Economic Incentives And Renewable Energy Development Goals, Matthew S. Edwards

Ocean and Coastal Law Journal

Energy tax credits have always been a significant driver of renewable energy development, but the recent Inflation Reduction Act in response to new national development goals represents the most significant change in several decades. The Inflation Reduction Act is certainly a step in the right direction, but there are numerous factors that limit the impact on future developments that should be remedied to allow for the nation’s best chance to reach 2030 renewable energy goals.

When Fines Don't Go Far Enough: The Failure Of Prison Settlements And Proposals For More Effective Enforcement Methods, Tori Collins

Maine Law Review

The Eighth Amendment’s Punishments Clause provides the basis on which prisoners may bring suit alleging unconstitutional conditions of confinement. Only a small number of these suits are successful. The suits that do survive typically end in a settlement in which prison authorities agree to address the unconstitutional conditions. However, settlements such as these are easily flouted for two primary reasons: prison authorities are not personally held liable when settlements are broken, and prisoners largely lack the political and practical leverage to self-advocate beyond the courtroom. Because of this, unconstitutional prison conditions may linger for years after prison authorities have agreed …

The Practical Jurisprudence Of Max Baer, Thomas R. Kline, Andra Laidacker, Charles Becker

Duquesne Law Review

The late Chief Justice Max Baer was a friend. We met through Duquesne Law School. Max graduated in 1975 and I (Tom Kline) graduated three years later. We did not attend law school at the same time, but we became friends through the Duquesne community. We shared the same birthday. We grew up Jewish in small-town Pennsylvania. Following graduation, Max stayed in Pittsburgh and built his career in the Attorney General's Office. I moved to Philadelphia to work for Jim Beasley. We sometimes were on the opposite sides of cases. But every year, we texted or called each other on …

Henderson And The Objective Observer Standard: The Future Of Race-Conscious Standards Post-Students For Fair Admissions, Gabriela Dionisio

Seattle University Law Review

On June 29, 2023, the Supreme Court of the United States decided Students for Fair Admissions v. President & Fellows of Harvard College, which struck down race-conscious admissions policies. Within just a year after its ruling, Students for Fair Admissions has already had a sweeping impact, reaching beyond higher education. Although the Supreme Court did not indicate whether Students for Fair Admissions applies to sectors beyond higher education, law firms, and other employers have already modified their diversity policies and initiatives, erasing race and company diversity considerations. Given those dramatic changes, there is growing fear that Students for Fair Admissions …

Same Crime, Different Time: Sentencing Disparities In The Deep South & A Path Forward Under The Fourteenth Amendment, Hailey M. Donovan

Seattle University Law Review

The United States has the highest incarceration rate of any country in the world. The American obsession with crime and punishment can be tracked over the last half-century, as the nation’s incarceration rate has risen astronomically. Since 1970, the number of incarcerated people in the United States has increased more than sevenfold to over 2.3 million, outpacing both crime and population growth considerably. While the rise itself is undoubtedly bleak, a more troubling truth lies just below the surface. Not all states contribute equally to American mass incarceration. Rather, states have vastly different incarceration rates. Unlike at the federal level, …

Plea Bargains, Prosecutorial Breach, And The Curious Right To Cure, Michael D. Cicchini

Brooklyn Law Review

When the prosecutor breaches a plea bargain—e.g., by recommending prison instead of the agreed-upon probation—the defendant is entitled to a remedy: either sentencing in front of a different judge or plea withdrawal. However, if defense counsel objects to the breach, the prosecutor may halfheartedly change the recommendation to probation. Most courts have held that to be an effective “cure”—even when the judge then sentences the defendant to prison, as the prosecutor originally recommended. The right to cure, which was intended for commercial sales contracts, fails miserably in the plea-bargain context. In the above example, the attempted cure is too late, …