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Session Summary: Controversial Remedies

SEALS Scholarship Committee Discussion Group Spotlight
Remedies Discussion Group: Controversial Remedies

Submitted by Caprice Roberts

The Remedies Discussion Group welcomed seasoned as well as newer voices to submit drafts and explore controversial remedies from universal injunctions to novel applications of equity. Professor Tom Folsom (Regent University) began our discussion with Privateers in Cyberspace, in which he proposes a third-party liability and remedy against “custodians” of data but offers a safe harbor if sufficient steps to remediate are in place. Then, Professor Chris Roederer (University of Dayton) offered Some Comparative Thoughts on Micro-Remedies for Micro-Indignities. Our discussion explored unintended consequences of the eggshell skull doctrine where the law fails to compensate real but less provable harms. Professor Andy Hessick (University of NorthCarolina) presented, Interpreting Injunctions, focusing on what method of interpretation courts should use when interpreting injunctions such as textualism, purposivism, or pragmatism. Professor Michael Morley (Florida State) discussed Reforming Modern Equity. He critiques a two-track model that divides law and equity because our designation as equitable hinges on historical contingencies instead of policy and justice-based rationales. Professor Cortney Lollar (University of Kentucky) presented Revitalizing Equitable Criminal Remedies, in which she advocates for revitalized consideration of utilizing equity in the criminal law context, especially because equity may offer solutions to challenging criminal justice issues. Professor Marco Jimenez (Stetson University) theorizes a protection interest as a satisfying,coherent way to unify the competing goals used by courts to justify punitive damages. Professor Vince Cardi (West Virginia University) discussed, Preliminary Reflections on Reasons Given for Limiting Recovery to the Contract Price When a Non-Breaching Party Seeks Recovery in Unjust Enrichment, in which he examines some of the reasons given by courts and commentators for limiting a non-breaching party’s restitution claim against the contract breaching party to the agreed upon contract price. Professor Saurabh Vishnubhakat (Texas A&M University) discussed an early-stage project that explores whether, and under what circumstances, inconsistent patent validity judgments between federal courts and the Patent Office may support claims of restitution. Professor Vanessa Zboreak (Wake Forest University) advanced an argument for salvaging remedies in the face of increasing statutory limitations on nuisance harms caused by farming interests. Professor Caprice Roberts (University of Florida) offered Disgorging Emoluments, in which she proposes a restitutionary-based remedy of disgorgement of emoluments—however their scope is interpreted—that constitute unjust gains.

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