Legal Remedies Commons^™

Victim V. Victim Restitution: The Commingling Fictions, Andrew Kull

St. Mary's Law Journal

Abstract forthcoming.

Strict Liability Upon Gunowners (Slug): A Proposed Balanced Approach, David Louis

St. Mary's Law Journal

Careless or apathetic gunowners, whose lost or stolen firearms are used in the commission of a violent crime, should be held strictly liable. Current tort law leaves victims of gun violence and their families without a mode of redress against an irresponsible gun owner whose actions played a pivotal role in the victim’s ultimate injury. Without effective liability principles to regulate gun ownership, gunowners are provided de facto immunity regardless of whether the harm suffered by the victim is intertwined with the gunowners careless behavior. This comment examines the efficacy of existing tort liability principles as provided in the Restatement …

Waiving Federal Sovereign Immunity In Original Actions Between States, Sandra B. Zellmer

University of Michigan Journal of Law Reform

There are tremendous disparities between high stakes original actions between states before the U.S. Supreme Court, where there is no waiver of federal sovereign immunity, and other types of cases in the lower courts, where a plethora of immunity waivers allow states and other parties to seek relief from the federal government for Fifth Amendment takings, unlawful agency action, and tort claims. Federal actions or omissions are often at the heart of the dispute, and federal involvement may be crucial for purposes of providing an equitable remedy to the state parties, but there is no reliable mechanism for bringing the …

The History Of A Mystery: The Evolution Of The Law Of Unjust Enrichment In Germany, England And China, Steve Gallagher, Lin Siyi, Lutz-Christian Wolff

Cardozo International & Comparative Law Review

The law of unjust enrichment, despite being recognized in all modern jurisdictions, remains controversial due to its complexities. This article examines the historical development of unjust enrichment in Germany, England, and China, arguing that the concept's simplicity and academic influence are root causes of ongoing doctrinal and practical challenges. The analysis critiques the single principle approach—whereby any unjustified enrichment must be returned—highlighting its failure to address diverse scenarios effectively. The article concludes that this flawed foundational concept, compounded by academic ambitions, has led to persistent issues across all three jurisdictions.

Are We In Good Hands? A Comparative Analysis Of Compensation Schemes Concerning Catastrophes And Their Administrative Structure, Yi Ming Zeng

Cardozo International & Comparative Law Review

The note critiques the administrative structure of the September 11th Victim Compensation Fund (VCF), highlighting its limitations in providing equitable and transparent compensation. It proposes integrating elements from Germany's and Japan's administrative systems to address these shortcomings and improve future disaster compensation schemes in the U.S.

Who Owns African Art? Envisioning A Legal Framework For The Restitution Of African Cultural Heritage, Charity Gates

Cardozo International & Comparative Law Review

The note advocates for the establishment of a legal framework to address the restitution of African cultural heritage, emphasizing the need to return looted art and artifacts from Western museums to their countries of origin. It highlights the historical injustices of colonial looting and the current legal barriers that hinder restitution, proposing solutions that balance cultural preservation with international cooperation.

Healers Or Dealers: The Effect Of Doctors Committing Health Care Fraud On The Opioid Epidemic, Peri Novick

Cardozo International & Comparative Law Review

The note argues that doctors who commit healthcare fraud by improperly prescribing opioids for personal gain should be held criminally liable for patient deaths resulting from their actions. It emphasizes that these physicians, often operating as "pill mills," violate ethical and legal standards, contributing significantly to the opioid epidemic. The analysis advocates for stronger legal enforcement and accountability to address this issue effectively.

Borrowing American Ideas To Improve Chinese Tort Law, Yongxia Wang

St. Mary's Law Journal

As China develops its modern jurisprudence it faces a choice between emulating the legal frameworks of civil law countries or common law countries. Thus far, the civil law path has allowed for a rapid expansion of Chinese tort law, but jurists have found difficulty in applying such generalized statutory schemes with the absence of supporting judicial interpretation. Cognizant of the differences between the public policy of common law countries and China, Vincent Johnson’s Mastering Torts (Měiguó Qīnquán Fǎ) provides this guidance through the lens of American tort law. The hornbook takes care to simplify the role of judicial …

What Do We Remedy?, Nicholas B. Cornell, Paul Miller, John Oberdiek

Book Chapters

This chapter examines the nature of civil wrongs from the perspective of the law of remedies, querying the supposition that remedies are exclusively responsive to primary rights violations and, in turn, the related supposition that a civil wrong is nothing more the violation of a primary right and correlative duty. Here, remedies correct for wrongs, but it is essential to recognize that the nature of a wrong—and, in turn, the selection of an apt or responsive remedy—is not driven exclusively by the nature of the right that was violated by the wrongdoer. This chapter’s analysis is framed as a critique …

The Myth Of Personal Liability: Who Pays When Bivens Claims Succeed, James E. Pfander, Alexander A. Reinert, Joanna C. Schwartz

Articles

In Bivens v. Six Unknown Named Agents, the Supreme Court held that federal law creates a right to sue federal officials for Fourth Amendment violations. For the last three decades, however, the Court has cited the threat of individual liability and the burden of government indemnification on agency budgets as twin bases for narrowing the right of victims to secure redress under Bivens. In its most recent decisions, Ziglar v. Abbasi and Hernandez v. Mesa, the Court said much to confirm that it now views personal liability less as a feature of the Bivens liability rule than …

Qualified Immunity's Selection Effects, Joanna C. Schwartz

Northwestern University Law Review

The Supreme Court has described the “driving force” behind qualified immunity to be its power to dismiss “insubstantial” cases before discovery and trial. Yet in a prior study of 1,183 Section 1983 cases filed against law enforcement in five federal court districts around the country, I found that just seven (0.6%) were dismissed at the motion to dismiss stage and just thirty-one (2.6%) were dismissed at summary judgment on qualified immunity grounds. These findings undermine assumptions about the role qualified immunity plays in filed cases, but leave open the possibility that qualified immunity serves its intended role by screening out …

Justices Make The Tough-- But Right-- Call In Cross-Border Shooting Case, A. Benjamin Spencer

Popular Media

No abstract provided.

Designing And Enforcing Preliminary Agreements, Albert H. Choi, George Triantis

Articles

Preliminary agreements—variously labeled as memoranda of understanding, letters of intent, term sheets, commitment letters, or agreements in principle—are common in complex business transactions. They document an incomplete set of terms that the parties have agreed upon, while anticipating further negotiation of the remaining provisions. They often create legal obligations, particularly a duty to negotiate in good faith. This duty has been the subject of a substantial number of judicial opinions over the past few decades and yet continues to be regarded as a confusing and unpredictable issue in contract law. Legal scholarship is hamstrung in its analysis of the case …

When Losses Are Too Big: Evaluating The Economic Loss Doctrine In California, John T. Nockleby

Loyola of Los Angeles Law Review

The pure economic loss doctrine is a rule developed by common law courts to shield a defendant from exposure to negligence suits where a party has not suffered physical injury or property damage, and the only losses someone suffers are economic in nature—such as lost profits or wages. Most recently, the California Supreme Court evaluated whether the doctrine should be applied in a case involving a massive environmental disaster, holding that the doctrine shielded a utility from liability for the economic losses to neighboring businesses caused by its putative negligence.

In October of 2015, a huge underground natural gas storage …

Bibliography Of Journal And Law Review Articles Discussing Virgil Hawkins And His Legal And Social Impact, Paul J. Mclaughlin

Documents

No abstract provided.

Preserving The Nationwide National Government Injunction To Stop Illegal Executive Branch Activity, Doug Rendleman

Scholarly Articles

The Trump Administration’s extravagant claims of executive power have focused the federal courts’ attention on separation of powers, judicial review, and equitable jurisdiction to grant broad injunctions that forbid the administration’s violations of the Constitution and federal statutes. Critics question the federal courts’ power to grant broad injunctions that are effective everywhere. These critics maintain, among other things, that the federal courts lack jurisdiction and that broad injunctions improperly affect nonparties and militate against “percolation” of issues in a variety of courts.

This Article examines the critics’ arguments and finds them unconvincing. Accepting the critics’ arguments would rebalance the separation …

Transnational Punitive And Compensatory Damages: Villains Or Role Models?, Attilio M. Costabel

St. Thomas Law Review

This Article concludes that the purpose and the scale of the American punitive damages and compensatory damages alike should not be disparaged as excesses of a society spoiled by exaggerated wealth; instead, they should be seen as a model for valuing the universal integrity of human life, while not depending on technicalities of international forum shopping.

Retroactive Adjudication, Samuel Beswick

All Faculty Publications

This Article defends the retroactive nature of judicial lawmaking. Recent Supreme Court judgments have reignited debate on the retroactivity of novel precedent. When a court announces a new rule, does it apply only to future cases or also to disputes arising in the past? This Article shows that the doctrine of non-retroactive adjudication offers no adequate answer. In attempting to articulate a law of non-retroactivity, the Supreme Court has cycled through five flawed frame-works. It has variously characterized adjudicative non-retroactivity as (1) a problem of legal philosophy; (2) a discretionary exercise for balancing competing right and reliance interests; (3) a …

To Outgrow A Mockingbird: Confronting Our History—As Well As Our Fictions—About Indigent Defense In The Deep South, Sarah Gerwig-Moore

Georgia Law Review

To Kill a Mockingbird occupies a beloved space in law school classrooms and curricula, especially in its portrayal of Atticus Finch. Frequently held up as the model or “hero-lawyer,” Atticus’s character is powerful in fiction, but problematic in practice. His work is lauded, rather than scrutinized, despite his questionable ability to represent his client in life-or-death circumstances—specifically, a racially charged sexual assault case in the Deep South. Through considering examples of historical lawyers and texts which explore similar themes without the lens of fiction, those engaged in legal education and legal practice can and should look to others to study …

Injunction Junction, What’S Your Function? Crafting Permanent Injunctions To Be Appropriate Remedies In Defamation Cases, James Netter

Georgia Law Review

When someone is liable for defamation, a court will
almost always levy monetary penalties against the
defamer. A rarely used penalty for defamation is the
imposition of a permanent injunction on the defaming
party that would prevent them from repeating their
defamatory content. Many courts see permanent
injunctions as an unconstitutional prior restraint on a
person’s right to speak, refusing to allow the
condemnation of a person’s speech before they have
spoken it. However, the common justifications for
denying permanent injunctions are weaker upon
reevaluation, particularly in the Internet age, and some
courts and legal scholars recognize that an injunction …