Legal Remedies Commons^™

Understanding Administrative Sanctioning As Corrective Justice, Eithan Y. Kidron

University of Michigan Journal of Law Reform

When should a regulator prefer criminal sanctions over administrative sanctions? What procedural protections should apply if a process is labeled civil but the sanctions are, in fact, criminal in type? And can the state justifiably conduct parallel proceedings for punitive sanctions against the same person or entity for the same conduct?

Throughout the years, judges and scholars alike have tried to understand and classify administrative sanctioning. Common to all of these conceptions is their failure to provide a complete normative framework for this unique body of law, which in turn makes it difficult to identify its practical limits and to …

Of Brutal Murder And Transcendental Sovereignty: The Meaning Of Vested Private Rights, Adam J. Macleod

Faculty Articles

The idea of vested private rights is divisive; it divides those who practice law from those who teach and think about law. On one side of the divide, practicing lawyers act as though (at least some) rights exist and exert binding obligations upon private persons and government officials, such that once vested, the rights cannot be taken away or retrospectively altered. Lawyers convey estates in property, negotiate contracts, and write and send demand letters on the supposition that they are specifying and vindicating rights, which are rights not as a result of a judgment by a court in a subsequent …

Statutory Damages And Standing After Spokeo V. Robins, Richard L. Heppner Jr.

Law Faculty Publications

In Spokeo v. Robins, the U.S. Supreme Court held that courts may no longer infer the existence of an injury in fact—and thus constitutional standing—from a statute’s use of a particular remedy, such as a statutory or liquidated damages provision. But Spokeo also directed courts to consider whether Congress intended to identify an intangible harm and elevate it to the status of a “concrete” injury in fact when deciding standing questions. This article argues that courts can and should continue to pay close attention to the structure and language of statutory remedial provisions in making that assessment. The article proposes …

Renovations Needed: The Fda's Floor/Ceiling Framework, Preemption, And The Opioid Epidemic, Michael R. Abrams

Michigan Law Review

The FDA’s regulatory framework for pharmaceuticals uses a “floor/ceiling” model: administrative rules set a “floor” of minimum safety, while state tort liability sets a “ceiling” of maximum protection. This model emphasizes premarket scrutiny but largely relies on the state common law “ceiling” to police the postapproval drug market. As the Supreme Court increasingly holds state tort law preempted by federal administrative standards, the FDA’s framework becomes increasingly imbalanced. In the face of a historic prescription medication overdose crisis, the Opioid Epidemic, this imbalance allows the pharmaceutical industry to avoid internalizing the public health costs of their opioid products. This Note …

Can Restitution Save Fragile Spiderless Networks?, Ariel Porat, Robert E. Scott

Faculty Scholarship

This Article examines the dramatic increase in business networks in recent decades and considers whether the law can play a useful role in supporting the efficient functioning of these inter-firm relationships for coordination and cooperation. Repeat play, reputational sanctions, and norms of trust and reciprocity are the common explanations for the flourishing of networks in many industries and places. But the evidence also shows that a certain class of networks often fails to survive or function effectively and beneficial cooperation among these network members is impaired. These fragile networks develop organically without a controlling party or hierarchy at the center …

Deepening The Relational Ecology Of Restorative Justice, Jennifer Llewellyn, Brenda Morrison

Articles, Book Chapters, & Popular Press

It is our pleasure to introduce and frame this Special Issue of The International Journal of Restorative Justice. This Special Issue seeks to advance and expand thinking, research and practice of a restorative approach at the level of institutions and social systems, from families to workplaces. The articles and notes from the field included here were developed out of the 2016 International Conference in Halifax, Nova Scotia, that shared the title and focus of this issue. The conference was held to fulfil a commitment made by the parties involved in a restorative justice process at the Faculty of Dentistry, Dalhousie …

Book Review: The Pimping Of Prostitution: Abolishing The Sex Work Myth By Julie Bindel, Roger Matthews

Dignity: A Journal of Analysis of Exploitation and Violence

No abstract provided.

Getting Local Governments Where They Need To Go Without Taking Taxpayers For A Ride: "Cabs," Why They Are Used, And What Can Be Done To Prevent Their Misuse, Heather G. White

St. Mary's Law Journal

Abstract forthcoming

Plata O Plomo: Effect Of Mexican Transnational Criminal Organizations On The American Criminal Justice System, Mark M. Mcpherson

St. Mary's Law Journal

Abstract forthcoming

Curbing Remedies For Official Wrongs: The Need For Bivens Suits In National Security Cases, Peter Margulies

Law Faculty Scholarship

No abstract provided.

Interim Relief: National Report For Canada, Trevor C. W. Farrow, Jonathan Silver

Articles & Book Chapters

Evolving litigation poses many challenges to litigants and their counsel before final adjudication. Canadian courts have fashioned various remedies to meet these challenges in order to preserve and maintain the court's authority to secure a just result.

Preclusion Law As A Model For National Injunctions, Suzette M. Malveaux

Publications

No abstract provided.

Deep Pocket Jurisprudence: Where Tort Law Should Draw The Line, Victor E. Schwartz, Phil Goldberg, Christopher E. Appel

Oklahoma Law Review

No abstract provided.

Learning Outcomes And Performance In Medical School: Programmatic Assessment At Nyu School Of Medicine, Colleen Gillespie Phd, Sondra Zabar Md, Adina Kalet Md, Mph

NYLS Law Review

No abstract provided.

Biased Damages Awards: Gender And Race Discrimination In Tort Trials, Goran Dominioni

Cardozo International & Comparative Law Review

Current U.S. tort law incentivizes potential tortfeasors to target members of underprivileged social groups by using gender and race-based statistical tables life expectancy; work-life expectancy and average wage) to award damages. Legal scholars have long criticized this practice from the point of view of distributive justice but supported it on welfarist grounds. Recent research in law and economics has however cast doubts on the efficiency of this practice. On this basis, some propose abandoning it in favor of gender and race neutral tables. In this article, I contribute to this debate by analyzing from a behavioral law and economics perspective …

Patent Clutter, Janet Freilich

Faculty Scholarship

Patent claims are supposed to clearly and succinctly describe the patented invention, and only the patented invention. This Article hypothesizes that a substantial amount of language in patent claims is in fact not about the core invention, which may contribute to well-documented problems with patent claims. I analyze the claims of 40,000 patents and applications, and document the proliferation of “clutter”—language in patent claims that is not about the invention. Although claims are supposed to be exclusively about the invention, clutter appears across industries and makes up approximately 25% of claim language. Patent clutter may contribute several major problems in …

Is Disgorgement A Penalty In The Antitrust-Enforcement Realm?: Exploring Mediation As The Ftc's Response To Kokesh In The Context Of Reverse Payment Settlements, Jennifer Kim

Cardozo Journal of Conflict Resolution

This Note seeks to answer the following question: How can the FTC respond to the potential influence of Kokesh by utilizing mediation to settle with and recover monetary relief from brand drug companies? Part II of this Note discusses the FTC's role in competition cases historically, as well as the Commission's proactive pursuit of monetary remedies, primarily disgorgement relief. It also provides a general overview of the Hatch-Waxman Act and its influence on the rise of patent infringement litigation, which, in effect, resulted in the rise of "pay-for-delay" settlements between brand and generic drug companies. Part III dissects the Supreme …

Undocumented Citizens Of The United States: The Repercussions Of Denying Birth Certificates, Anna L. Lichtenberger

St. Mary's Law Journal

Abstract forthcoming

Remedies And The Government's Constitutionally Harmful Speech, Helen Norton

Publications

Although governments have engaged in expression from their inception, only recently have we begun to consider the ways in which the government’s speech sometimes threatens our constitutional rights. In my contribution to this symposium, I seek to show that although the search for constitutional remedies for the government’s harmful expression is challenging, it is far from futile. This search is also increasingly important at a time when the government’s expressive powers continue to grow—along with its willingness to use these powers for disturbing purposes and with troubling consequences.

More specifically, in certain circumstances, injunctive relief, declaratory relief, or damages can …

To Sue And Be Sued: Capacity And Immunity Of American Indian Nations, Richard B. Collins

Publications

Can American Indian nations sue and be sued in federal and state courts? Specific issues are whether tribes have corporate capacity to sue, whether a Native group has recognized status as a tribe, and whether and to what extent tribes and their officers have governmental immunity from suit. Tribal capacity to sue is now well established, and federal law has well-defined procedures and rules for tribal recognition. But tribal sovereign immunity is actively disputed.

This Article reviews retained tribal sovereignty in general and summarizes past contests over tribal capacity to sue and their resolution into today’s settled rule. Next is …