Legal Remedies Commons^™

Remedies For Government Breach: Lessons From The United States And A Zone Of Appealable Remedies For Southeast Asia, Benjamin D. Black

Brooklyn Law Review

Though international investment treaties may supplant domestic contract law in cross-border government contracts, their limited use in Southeast Asia informs the continued importance of clear remedies for a government breach of contract under domestic law. As investment from China’s Belt and Road Initiative continues to flow into the region, private parties require clear rules and remedies when a government breaches a contract. This note argues that the lack of clear and codified public contract law in Southeast Asia presents a substantial risk to private contractors and that the extreme variance in public contract law is detrimental to both parties involved. …

Without A Voice, Without A Forum: Finding Iirira Section 1252(G) Unconstitutional, Amanda Simms

Brooklyn Law Review

The Federal Tort Claims Act (FTCA) abrogates sovereign immunity in certain circumstances to allow private individuals, regardless of citizenship, to sue the United States for specific torts committed by government officials. Yet when two lawful permanent residents—located in different parts of the country—separately tried to sue the government for wrongful removal, one court dismissed the suit for lack of subject matter jurisdiction while the other court did not. These decisions, though reaching opposite conclusions, both relied on federal immigration statute 8 U.S.C. § 1252(g) in order to determine whether judicial review of immigrants’ removal orders is precluded. This note argues …

Hostile Restructurings, Diane L. Dick

Washington Law Review

The conventional wisdom holds that out-of-court loan restructurings are mostly consensual and collaborative. But this is no longer accurate. Highly aggressive, nonconsensual restructuring transactions—what I call “hostile restructurings”—are becoming a common feature of the capital markets. Relying on hypertechnical interpretations of loan agreements, one increasingly popular hostile restructuring method involves issuing new debt that enjoys higher priority than the existing debt; another involves transferring the most valuable collateral away from existing lenders to secure new borrowing.

These transactions are distinguishable from normal out-of-court restructurings by their use of coercive tactics to overcome not only the traditional minority lender holdout problem, …

Structural Barriers To Inclusion In Arbitrator Pools, Nicole G. Iannarone

Washington Law Review

Critics increasingly challenge mandatory arbitration because the pools from which decisionmakers are selected are neither diverse nor inclusive. Evaluating diversity and inclusion in arbitrator pools is difficult due to the black box nature of mandatory arbitration. This Article evaluates inclusion in arbitrator pools through a case study on securities arbitration. The Article relies upon the relatively greater transparency of the Financial Industry Regulatory Authority (FINRA) forum. It begins by describing the unique role that small claims securities arbitration plays in maintaining investor trust and confidence in the securities markets before describing why ensuring that the FINRA arbitrator pool is both …

Copyright’S Deprivations, Anne-Marie Carstens

Washington Law Review

This Article challenges the constitutionality of a copyright infringement remedy provided in federal copyright law: courts can order the destruction or other permanent deprivation of personal property based on its mere capacity to serve as a vehicle for infringement. This deprivation remedy requires no showing of actual nexus to the litigated infringement, no finding of willfulness, and no showing that the property’s infringing uses comprise the significant or predominant uses. These striking deficits stem from a historical fiction that viewed a tool of infringement, such as a printing plate, as the functional equivalent of an infringing copy itself. Today, though, …

You Are Not A Commodity: A More Efficient Approach To Commercial Privacy Rights, Benjamin T. Pardue

Washington Law Review

United States common law provides four torts for privacy invasion: (1) disclosure of private facts, (2) intrusion upon seclusion, (3) placement of a person in a false light, and (4) appropriation of name or likeness. Appropriation of name or likeness occurs when a defendant commandeers the plaintiff’s recognizability, typically for a commercial benefit. Most states allow plaintiffs who establish liability to recover defendants’ profits as damages from the misappropriation under an “unjust enrichment” theory. By contrast, this Comment argues that such an award provides a windfall to plaintiffs and contributes to suboptimal social outcomes. These include overcompensating plaintiffs and incentivizing …

Arbitrating Copyright Disputes In Egypt, Islam Mohamed

Maurer Theses and Dissertations

Egypt is witnessing increasing difficulty in implementing and practicing protectionist policies for intellectual property rights, which includes copyright as a fundamental element. Since the Egyptian judicial system is exclusively concerned with adjudicating all disputes, it has become increasingly burdened in recent decades due to this monopoly. As a result, the Egyptian judiciary is witnessing a significant slowdown in resolving conflicts and procedural obstacles which delay the restitution of Intellectual property rights to its owners. Thus, we believe that applying arbitration will contribute to resolving copyright disputes in advance on one hand and will encourage an attractive climate in such matters …

New Federalism And Civil Rights Enforcement, Alexander Reinert, Joanna C. Schwartz, James E. Pfander

Northwestern University Law Review

Calls for change to the infrastructure of civil rights enforcement have grown more insistent in the past several years, attracting support from a wide range of advocates, scholars, and federal, state, and local officials. Much of the attention has focused on federal-level reforms, including proposals to overrule Supreme Court doctrines that stop many civil rights lawsuits in their tracks. But state and local officials share responsibility for the enforcement of civil rights and have underappreciated powers to adopt reforms of their own. This Article evaluates a range of state and local interventions, including the adoption of state law causes of …

The Thirteenth Amendment And One Hundred And Fifty Years Of Struggle To Criminalize Slavery: A First Amendment Challenge To The Forced Labor Act (18 U.S.C. § 1589), Niles Stefan Illich

St. Mary's Law Journal

Abstract forthcoming.

Justifying The Supreme Court’S Standards Of Review, R. Randall Kelso

St. Mary's Law Journal

Abstract forthcoming.

Municipal Optimization Of Short-Term Rental Regulations: The Reality Of Airbnb In South Texas Communities, Kenneth M. Culbreth Iii

St. Mary's Law Journal

Abstract forthcoming.

Bolstering Juliana: Enforceability Of Environmental Claims Through International Treaty Obligations In U.S. Courts, Lindsey Laielli

St. Mary's Law Journal

Abstract forthcoming.

Testing Privilege: Coaching Bar Takers Towards “Minimum Competency” During The 2020 Pandemic, Benjamin Afton Cavanaugh

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

Justice For Venezuela: The Human Rights Violations That Are Isolating An Entire Country, Andrea Matos

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming.

To Remove Or Not To Remove - Is That The Question In 1933 Act Securities Cases?, Tanya Pierce

Faculty Scholarship

Litigants spend immense time and money fighting over procedure. That fact is especially true for procedural rules concerning where a case may be heard—which, in the context of class actions, can determine the viability of claims almost regardless of their underlying merit. The potential for class certification, which tends to be greater in state than in federal courts, can transform claims that alone are too small to even justify suing into threats so large that defendants routinely use the words “judicial blackmail” to describe them. This paper focuses on a growing conflict between federal statutory removal provisions that arises in …

Judicial Deference Of The Board Of Immigration Appeals’ Regulatory Interpretations In Light Of Kisor V. Wilkie, Melissa Fullmer

St. Mary's Law Journal

Abstract forthcoming.

The Dangers Of Doxing And Swatting: Why Texas Should Criminalize These Malicious Forms Of Cyberharassment, Hannah Mery

St. Mary's Law Journal

Abstract forthcoming.

Alexa Hears With Her Little Ears—But Does She Have The Privilege?, Lauren Chlouber Howell

St. Mary's Law Journal

Abstract forthcoming.

The Ratio Method: Addressing Complex Tort Liability In The Fourth Industrial Revolution, Harrison C. Margolin, Grant H. Frazier

St. Mary's Law Journal

Emerging technologies of the Fourth Industrial Revolution show fundamental promise for improving productivity and quality of life, though their misuse may also cause significant social disruption. For example, while artificial intelligence will be used to accelerate society’s processes, it may also displace millions of workers and arm cybercriminals with increasingly powerful hacking capabilities. Similarly, human gene editing shows promise for curing numerous diseases, but also raises significant concerns about adverse health consequences related to the corruption of human and pathogenic genomes.

In most instances, only specialists understand the growing intricacies of these novel technologies. As the complexity and speed of …

Tort Remedies In Military Prisons And Brigs, Brenner M. Fissell, Max Jesse Goldberg

Faculty Publications

Symposium on Military Justice October 2021.

Hosted by National Institute of Military Justice (In honor of NIMJ's 30th Anniversary)