Wednesday, January 3, Program
9:00 – 10:30 a.m.
Plenary Session - Creative Remedies in Big Cases
Elizabeth J. Cabraser, Esquire, Lieff Cabraser Heimann & Bernstein, San Francisco, California
Kenneth R. Feinberg, Managing Partner and Founder, The Feinberg Group, LLP, Washington, D.C.
Burt Neuborne, New York University -view outline-
Moderator: Douglas Laycock, The University of Michigan
The panelists will discuss their experience with big and creative remedies, and the insights they have drawn from that experience. Elizabeth Cabraser is counsel in many large class actions, including a class claim for restitution of the profits of genocide against the government of Sudan. Kenneth Feinberg administered the 9/11 Victim’s Compensation Fund. Burt Neuborne represented Holocaust victims in a major reparations case. Each panelist will then lead one of the concurrent sessions at 10:45, where the discussion can continue.
10:30 – 10:45 a.m.
10:45 a.m. – 12:15 p.m.
- The 9/11 Fund: Sui Generis or Blueprint for the Future?
Robert L. Rabin, Stanford Law School -view outline-
Anthony J. Sebok, Brooklyn Law School
Moderator and Speaker: Kenneth R. Feinberg, Managing Partner and Founder, The Feinberg Group, LLP, Washington, D.C.
Kenneth Feinberg recently authored “What is Life Worth?: The Unprecedented Effort to Compensate the Victims of 9/11,” recounting his views from the vantage point of having served as Special Master charged with implementing the 9/11 Victims’ Compensation Fund. Professors Rabin and Sebok are leading torts scholars, each of whom has weighed in on the question whether the 9/11 Fund could usefully serve as a precedent (or model) for future governmental no-fault compensation schemes for personal injury.
- Reparations for Massive and Ancient Wrongs
Adjoa Artis Aiyetoro, University of Arkansas at Little Rock -view outline-
Alfred L. Brophy, The University of Alabama
Natsu Taylor Saito, Georgia State University College of Law
Moderator and Speaker: Burt Neuborne, New York University
Traditional remedies doctrine includes efficiency and closure as important goals. The call for reparations introduces a different world view: past injustice, left unremedied, creates continuing harm. Scholars who have considered contemporary claims for reparation (arising out of the Holocaust, slavery, and the Japanese internment) will discuss the jurisprudential, political, and practical challenges evoked by the concept of reparation.
- Aggregate Litigation: Time to Address Remedies
Samuel Issacharoff, New York University
William B. Rubenstein, University of California at Los Angeles
Moderator and Speaker: Elizabeth J. Cabraser, Esquire, Lieff Cabraser Heimann & Bernstein, San Francisco, California
Samuel Issacharoff serves as Reporter on the American Law Institute’s “Principles of the Law of Aggregate Litigation,” which addresses all forms of aggregate litigation, from joinder to consolidation to class actions. Elizabeth Cabraser and William Rubenstein each serve as Advisors on the Project. The panelists will discuss and debate the significance and placement of remedies in aggregate litigation, as the issue comes to the fore of the Project.
- Perspectives: There Must be Fifty Ways to Teach a Remedies Course
Tomiko Brown-Nagin, University of Virginia
W. Jonathan Cardi, University of Kentucky
Sumi K. Cho, DePaul University
Douglas Laycock, The University of Michigan -view outline-
David I. Levine, University of California, Hastings -view outline-
Jean C. Love, University of Iowa -view outline-
Doug Rendleman, Washington and Lee University -view outline-
Elaine W. Shoben, University of Nevada, Las Vegas -view outline-
Russell L. Weaver, University of Louisville -view outline-
Additional Panelists Pending
Moderator: Thomas D. Rowe, Jr., Duke University
This will be a conversation, initially among several editors of Remedies casebooks and several young teachers of Remedies, and then among all assembled. We will discuss the Remedies course, the choices it presents, and the joys and challenges of teaching it.
12:15 – 2:00 p.m.
Lunch on Your Own
2:00 – 3:30 p.m.
- Remedies Provisions of the New Restatement of Restitution
Candace Saari Kovacic-Fleischer, American University
Andrew Kull, Boston University -view outline-
Emily L. Sherwin, Cornell Law School -view outline-
Moderator: Mark P. Gergen, The University of Texas
Andrew Kull, the Reporter of the Restatement (Third) of Restitution and Unjust Enrichment, will report on the Restatement’s remedies provisions (which are just now being written) and outline the theory that lies behind those provisions. Other restitution scholars will react and we expect that a free and flowing discussion will ensue.
- The Political and Policy Debate Over Tort Remedies
Deborah R. Hensler, Stanford Law School
Keith Norman Hylton, Boston University
Oliver Moreteau, Louisiana State University -view outline-
Moderator: Catherine M. Sharkey, Columbia University
Most of the proposals to change tort law are in fact proposals to limit remedies. This panel will bring together a leading empirical scholar of the tort reform debate, a leading law-and-economics scholar of the tort reform debate, and a comparative perspective.
- Social Inequality and Monetary Relief
Thomas W. Mitchell, University of Wisconsin -view outline-
Ellen S. Pryor, Southern Methodist University
Jennifer Wriggins, University of Maine -view outline-
Moderator and Speaker: Lucinda M. Finley, State University of New York at Buffalo -view outline- -view presentation-
The panelists will examine a wide array of monetary remedies, looking for evidence of inequality in the measurement of damages and other forms of compensation. Examples of such inequality include race and gender bias in the law of tort damages, racial bias in amounts awarded in partition sales and foreclosure sales of farm land, and the failure of the tort system to provide adequate compensation for plaintiffs who are permanently physically disabled.
- What’s Happening With Injunctions?
Wendy Marie Parker, Wake Forest University -view outline-
David Schoenbrod, New York Law School -view outline-
Tracy A. Thomas, University of Akron -view outline-
Moderator and Speaker: Susan P. Sturm, Columbia University
The panelists will examine injunctions in the context of institutional reform litigation. They will consider the history of the development of the structural injunction, and then discuss the role of the modern judiciary in promoting institutional change. They will also address the prophylactic injunction, focusing on the role it plays in institutional reform litigation.
- Contract Remedies
Michael B. Kelly, University of San Diego -view outline-
Deborah Waire Post, Touro College
Robert E. Scott, Columbia University -view outline-
Moderator: Todd D. Rakoff, Harvard Law School
This panel will emphasize current developments in contract remedies. It may also include some discussion of the treatment of remedy issues in teaching the contracts course.
3:30 – 3:45 p.m.
3:45 – 5:15 p.m.
Plenary Session - Limitations on Federal Remedies by the Supreme Court and other Actors
Eva Jefferson Paterson, President, Equal Justice Society, San Francisco, California -view outline- -view materials-
Judith Resnik, Yale Law School
Kenneth W. Starr, Pepperdine University -view outline-
Moderator: Pamela S. Karlan, Stanford Law School -view outline-
This panel will bring together leading observers of the federal courts and of the civil rights movement to consider the many ways in which the Supreme Court and other actors have limited remedies for violations of federal law. Examples include the expansion of immunity rules, the insistence that Congress expressly authorize private causes of action and that it authorize specific remedies (at least if it says anything at all about remedy), other limitations on damages and attorney-fee recoveries, tighter rules on the scope of injunctive relief, Younger abstention, and other limits on access to courts.