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Full-Text Articles in Law
The Unconstitutional Assertion Of Inherent Powers In Multidistrict Litigations, Robert J. Pushaw, Charles Silver
The Unconstitutional Assertion Of Inherent Powers In Multidistrict Litigations, Robert J. Pushaw, Charles Silver
BYU Law Review
This Article examines the constitutional basis of the federal courts’ independent exercise of “inherent powers” (IPs) that Congress has not specifically authorized. Our analysis illuminates the grave constitutional problems raised by the freewheeling assertion of IPs in multidistrict litigations (MDLs), which comprise over half of all pending federal cases.
The Supreme Court has rhetorically acknowledged that the Constitution allows resort to IPs only when doing so is absolutely necessary to enable Article III courts to exercise their “judicial power,” but has then sustained virtually all exercises of IP, whether essential or not. The Court’s excessive deference has emboldened trial judges …
The Constitutional Model Of Mootness, Tyler B. Lindley
The Constitutional Model Of Mootness, Tyler B. Lindley
BYU Law Review
Article III limits the federal courts to deciding cases and controversies, and this limitation has given rise to the black-letter law of standing, ripeness, and mootness. But the law of mootness presents a puzzle: Over time, the Court has recognized various "exceptions" to ordinary mootness rules, allowing federal courts to hear arguably moot cases. On one hand, the Court consistently asserts that mootness doctrine, including its exceptions, is compelled by the original understanding of Article III. On the other hand, the scholarly consensus is that these exceptions are logically inconsistent with the Court s claims about Article III and that …
Procedural Wrongdoing, Matthew A. Shapiro
Procedural Wrongdoing, Matthew A. Shapiro
BYU Law Review
Both the practice and the study of civil justice are rife with accusations of litigation “abuse.” Although it’s tempting to dismiss all this abuse talk as merely rhetorical, the concept of abuse in fact has deep roots in the normative structure of civil procedure’s doctrinal apparatus for regulating parties’ wrongful litigation conduct — their procedural wrongdoing. Prior accounts of procedural wrongdoing have maintained that parties abuse the civil justice system whenever they violate a procedural rule that’s calibrated to maximize the net benefits of litigation. Such accounts, however, ignore the many rules that define procedural wrongdoing not in terms of …
The Realities Of Takings Litigation, Dave Owen
The Realities Of Takings Litigation, Dave Owen
BYU Law Review
This Article presents an empirical study of takings litigation against the United States. It reviews the cohort of takings cases filed against the federal government between 2000 and 2014, tracing each case from filing through final disposition. The result is a picture of takings litigation that is at odds with much of the conventional wisdom of the field. That conventional wisdom suggests that most takings cases will involve alleged regulatory takings; that the most intellectually challenging issues will arise within the field of regulatory takings; and, more broadly, that takings litigation will play an important role in the United States' …
Is Trade Sexist? How “Pink” Tariff Policies’ Harmful Effects Can Be Curtailed Through Litigation And Legislation, Miranda Hatch
Is Trade Sexist? How “Pink” Tariff Policies’ Harmful Effects Can Be Curtailed Through Litigation And Legislation, Miranda Hatch
BYU Law Review
No abstract provided.
A State Is A “They,” Not An “It”: Intrastate Conflicts In Multistate Challenges To The Affordable Care Act, Anthony Johnstone
A State Is A “They,” Not An “It”: Intrastate Conflicts In Multistate Challenges To The Affordable Care Act, Anthony Johnstone
BYU Law Review
No abstract provided.
Forward: State Enforcement In An Interstate World, Margaret H. Lemos
Forward: State Enforcement In An Interstate World, Margaret H. Lemos
BYU Law Review
“State Enforcement in an Interstate World” is an important topic—fully deserving of all the attention it has received. Past commentators on this topic have generally treated the federal government as a unitary entity. Building on prior work on the subject, this Article explores the polycentric nature of federal regulatory authority and shows how cooperation and rivalry have long been dominant realities of the modern administrative state. The Article discusses how these dynamics complicate analysis of state enforcement in an interstate world and identifies strategies for reducing the frequency and magnitude of the seemingly inevitable conflicts.
Class Actions, Jurisdiction, And Principle In Doctrinal Design, David Marcus, Will Ostrander
Class Actions, Jurisdiction, And Principle In Doctrinal Design, David Marcus, Will Ostrander
BYU Law Review
No abstract provided.
State Enforcement In A Polycentric World, David A. Hyman, William E. Kovacic
State Enforcement In A Polycentric World, David A. Hyman, William E. Kovacic
BYU Law Review
No abstract provided.
The (Surprisingly) Prevalent Role Of States In An Era Of Federalized Class Actions, Linda S. Mullenix
The (Surprisingly) Prevalent Role Of States In An Era Of Federalized Class Actions, Linda S. Mullenix
BYU Law Review
In enacting the Class Action Fairness Act of 2005 (CAFA), Congress intended to expand access to the federal courts for interstate class actions by creating minimal diversity and removal jurisdiction. In Section 2 of the Act, “Findings and Purposes,” Congress stated that class action abuses undermined “the concept of diversity jurisdiction as intended by the Framers of the United States Constitution” in that state courts kept cases of national importance out of federal court and sometimes demonstrated bias against out-of-state defendants. Congress stated that a purpose of CAFA was to “restore the intent of the framers of the United States …
Getting Brady Right: Why Extending Brady V. Maryland’S Trial Right To Plea Negotiations Better Protects A Defendant’S Constitutional Rights In The Modern Legal Era, James M. Grossman
Getting Brady Right: Why Extending Brady V. Maryland’S Trial Right To Plea Negotiations Better Protects A Defendant’S Constitutional Rights In The Modern Legal Era, James M. Grossman
BYU Law Review
No abstract provided.
The Heck Conundrum: Why Federal Courts Should Not Overextend The Heck V. Humphrey Preclusion Doctrine, Lyndon Bradshaw
The Heck Conundrum: Why Federal Courts Should Not Overextend The Heck V. Humphrey Preclusion Doctrine, Lyndon Bradshaw
BYU Law Review
No abstract provided.
Is The Clean Water Act's Diligent Prosecution Bar Jurisdictional? A Journey Into Discovering Congressional Intent, Szonja Ludvig
Is The Clean Water Act's Diligent Prosecution Bar Jurisdictional? A Journey Into Discovering Congressional Intent, Szonja Ludvig
BYU Law Review
No abstract provided.
Perception And Persuasion In Legal Argumentation: Using Informal Fallacies And Cognitive Biases To Win The War Of Words, Cory S. Clements
Perception And Persuasion In Legal Argumentation: Using Informal Fallacies And Cognitive Biases To Win The War Of Words, Cory S. Clements
BYU Law Review
No abstract provided.
The End Of Shareholder Litigation? Allowing Shareholders To Customize Enforcement Through Arbitration Provisions In Charters And Bylaws, Paul Weitzel
BYU Law Review
Shareholder litigation has been heavily criticized for its inability to compensate harmed shareholders or deter managerial misconduct. While some have suggested abolishing shareholder litigation altogether, this Article takes a more moderate approach. I propose allowing shareholders to enforce charter and bylaw provisions that require arbitration of certain disputes. For example, an acquisitive company may require arbitration of merger-related suits while allowing non-merger suits to proceed in court. Likewise, a company in an industry known for volatile stock prices could require a price drop of three or four standard deviations before the suit could be brought in court, rather than arbitration. …
Mohamed V. Jeppesen Dataplan, Inc.: The Ninth Circuit Sends The Totten Bar Flying Away On The Jeppesen Airplane, Michael Q. Cannon
Mohamed V. Jeppesen Dataplan, Inc.: The Ninth Circuit Sends The Totten Bar Flying Away On The Jeppesen Airplane, Michael Q. Cannon
BYU Law Review
No abstract provided.
Judicial Takings In Vandevere V. Lloyd, Cory S. Clements
Judicial Takings In Vandevere V. Lloyd, Cory S. Clements
BYU Law Review
No abstract provided.
Keep Your Program Out Of My Game: The Ninth Circuit’S Convoluted Copyright Analysis In Mdy Industries, Inc. V. Blizzard Entertainment, Inc, Brandon T. Crowther
Keep Your Program Out Of My Game: The Ninth Circuit’S Convoluted Copyright Analysis In Mdy Industries, Inc. V. Blizzard Entertainment, Inc, Brandon T. Crowther
BYU Law Review
No abstract provided.
Did Bad Debtors Influence The Tenth Circuit To Make An Unfortunate Decision? Making Reorganization More Difficult For Farmers In United States V. Dawes, Laura Jones
BYU Law Review
No abstract provided.
Reaping The Benefits Of Class Cerification: How And When Should "Significant Proof" Be Required Post-Dukes?, Julie Slater
Reaping The Benefits Of Class Cerification: How And When Should "Significant Proof" Be Required Post-Dukes?, Julie Slater
BYU Law Review
No abstract provided.
Ineffective Assistance Of Counsel In Plea Bargain Negotiations , Paul J. Sampson
Ineffective Assistance Of Counsel In Plea Bargain Negotiations , Paul J. Sampson
BYU Law Review
No abstract provided.
Failure To Yield: How Wecht Might Ruin The Right To A Fair Trial , Landon Wade Magnusson
Failure To Yield: How Wecht Might Ruin The Right To A Fair Trial , Landon Wade Magnusson
BYU Law Review
No abstract provided.
Just Go Away: Representation, Due Process, And Preclusion In Class Actions, Debra Lyn Bassett
Just Go Away: Representation, Due Process, And Preclusion In Class Actions, Debra Lyn Bassett
BYU Law Review
No abstract provided.
Constructing Class Action Reality, Debra Lyn Bassett
Constructing Class Action Reality, Debra Lyn Bassett
BYU Law Review
No abstract provided.
Risky Business: Attorney Liability In Insurance Defense Litigation-A Review Of The Arizona Supreme Court's Decision In Paradigm Insurance Co. V. Langerman Law Offices
BYU Law Review
No abstract provided.
Jones V. Clinton: A Study In Politically Motivated Suits, Rule 1 1, And The First Amendment, Carol Rice Andrews
Jones V. Clinton: A Study In Politically Motivated Suits, Rule 1 1, And The First Amendment, Carol Rice Andrews
BYU Law Review
No abstract provided.
Rescuing Multidistrict Litigation From The Altar Of Expediency, Carter G. Phillips, Gene C. Schaerr, Anil K. Abraham
Rescuing Multidistrict Litigation From The Altar Of Expediency, Carter G. Phillips, Gene C. Schaerr, Anil K. Abraham
BYU Law Review
No abstract provided.
Class Actions And Supplemental Jurisdiction: Will Zahn V. International Paper Co. Remain Viable?, Christopher P. Simkins
Class Actions And Supplemental Jurisdiction: Will Zahn V. International Paper Co. Remain Viable?, Christopher P. Simkins
BYU Law Review
No abstract provided.
Section L04(A)(2) After Commissioner U. Schleier: Litigating The Excludability Of Statutory Damages "Received On Account Of Personal Injuries", T. James Lee Jr.
Section L04(A)(2) After Commissioner U. Schleier: Litigating The Excludability Of Statutory Damages "Received On Account Of Personal Injuries", T. James Lee Jr.
BYU Law Review
No abstract provided.
Removing Intrastate Lawsuits: The Affecting-Commerce Argument After United States V. Lopez, Kelly G. Black
Removing Intrastate Lawsuits: The Affecting-Commerce Argument After United States V. Lopez, Kelly G. Black
BYU Law Review
No abstract provided.