Law Commons^™

“Fundamental Fairness”: Finding A Civil Right To Counsel In International Human Rights Law, Meredith Elliot Hollman

Law Student Publications

Every other Western democracy now recognizes a right to counsel in at least some kinds of civil cases, typically those involving basic human rights. The World Justice Project’s 2021 Rule of Law Index ranked the United States 126th of 139 countries for “People Can Access and Afford Civil Justice.” Within its regional and income categories, the United States was dead last. The United Nations and other international treaty bodies have urged the United States to improve access to justice by providing civil legal aid. How did we fall behind, and what can we learn from the rest of the world? …

The Business Of Securities Class Action Lawyering, Jessica M. Erickson, Stephen J. Choi, Adam C. Pritchard

Law Faculty Publications

Plaintiffs’ lawyers in the United States play a key role in combating corporate fraud. Shareholders who lose money as a result of fraud can file securities class actions to recover their losses, but most shareholders do not have enough money at stake to justify overseeing the cases filed on their behalf. As a result, plaintiffs’ lawyers control these cases, deciding which cases to file and how to litigate them. Recognizing the agency costs inherent in this model, the legal system relies on lead plaintiffs and judges to monitor these lawyers and protect the best interests of absent class members. Yet …

Neoliberal Civil Procedure, Luke Norris

Law Faculty Publications

This Article argues that the current era of U.S. civil procedure is defined by its neoliberalism. The Supreme Court has over the past few decades reinterpreted the Federal Rules of Civil Procedure in ways that have made it more difficult for citizens to bring and maintain civil claims. The major decisions of this new era—in areas as diverse as summary judgment, pleading, class actions, and arbitration—exhibit neoliberal hallmarks. They display neoliberalism’s tendency to naturalize existing market arrangements, its focus on efficiency and obscuring questions of power, its reduction of citizens to consumers, and its attempt to analyze government through the …

The Promise And Perils Of Private Enforcement, Luke Norris

Law Faculty Publications

A new crop of private enforcement suits is sprouting up across the country. These laws permit people to bring enforcement actions against those who aid or induce abortions, against schools that permit transgender students to use bathrooms consistent with their gender identities, and against schools that permit transgender students to play on sports teams consistent with their gender identities. Similar laws permit people to bring enforcement actions against schools that teach critical race theory and against those who sell restricted firearms. State legislatures are considering a host of laws modeled on these examples, along with other novel regimes. These are …

Swimming Up The Stream Of Commerce: How Plaintiffs In Products Liability Litigation Are Disadvantaged By Current Personal Jurisdiction Doctrine, Lily S. Smith

Law Student Publications

"“The Court must periodically intervene in the perpetual battle between plaintiffs and corporations over personal jurisdiction, especially when one side has secured a competitive advantage. The time for such intervention has likely arrived.”

Emma is a resident of Billings, Montana, and she ordered the “Whitten 10-in-1, 8 Blade Onion Mincer, Chopper, Slicer, Cutter, Dicer, with Container” on Amazon. The product is a multifunctional kitchen tool that can chop, slice, cut, and dice your vegetable of choice. By pushing down on the container’s lid, the vegetable is forced through blades, resulting in perfectly cut vegetables. Via Amazon Prime, Emma received the …

The Oligarchic Courthouse: Jurisdiction, Corporate Power, And Democratic Decline, Luke Norris, Helen Hershkoff

Law Faculty Publications

Jurisdiction is foundational to the exercise of a court’s power. It is precisely for this reason that subject matter jurisdiction today has come to the center of a struggle over corporate power and the regulatory state. Corporations have sought to manipulate forum choice to wear out less-resourced parties and circumvent hearings on the merits, along the way insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of court and push them into arbitration, and failing that, to lock plaintiffs into federal court rather than state court or …

The Lost Lessons Of Shareholder Derivative Suits, Jessica M. Erickson

Law Faculty Publications

Merger litigation has changed dramatically. Today, nearly every announcement of a significant merger sparks litigation, and these cases look quite different from merger cases in the past. These cases are now filed primarily outside of Delaware, they typically settle without shareholders receiving any financial consideration, and corporate boards now have far more ex ante power to shape these cases. Although these changes are often heralded as unprecedented, they are not. Over the past several decades, derivative suits experienced many of the same changes. This Article explores the similarities between the recent changes in merger litigation and the longer history of …

Investing In Corporate Procedure, Jessica M. Erickson

Law Faculty Publications

Corporate litigation is in crisis. At the state level, shareholder lawsuits challenging mergers and other corporate decisions are ubiquitous but rarely end with meaningful relief for shareholders. At the federal level, securities class actions are rife with ethical challenges and low-value settlements. Over the last several decades, multiple groups — including judges, legislatures, and corporate boards — have tried to solve this problem, but all have come up short. This Article argues that the solution lies in rewriting the procedural rules that govern corporate lawsuits. New standing requirements would lead to better screening of these claims. Discovery limits and heightened …

Qualified Immunity And Fault, John F. Preis

Law Faculty Publications

As a general rule, liability correlates with fault. That is, when the law declares a person liable, it is usually because the person is, in some sense, at fault. Similarly, when the law does not declare a person liable, it is usually because the person is not deemed to be at fault. There are exceptions, of course. A storekeeper who unwittingly sells a product that harms another may be held liable under the doctrine of strict liability, despite her blameless conduct. Similarly, a website owner who knowingly permits others to post defamatory statements on her website is not liable, despite …

In Re Trulia: Revisited And Revitalized, Emma Weiss

Law Student Publications

"After an escalation in deal litigation that culminated with challenges to 95% of $100,000,000 deals, merger objection litigation that ends in disclosure-only settlements has become a topic of great concern. These cases are concerning because it seems implausible that 95% of all mergers are executed carelessly. The problematic cases all follow a similar pattern. When a merger is announced, multiple shareholder plaintiffs challenge the transaction in multiple jurisdictions. Plaintiffs and corporate defendants then quickly agree to a disclosure-only settlement, wherein the plaintiffs receive trivial supplemental disclosures about the transaction. In return, defendants receive a broad release from liability for future …

Marriage Equality Comes To America, Carl W. Tobias

Law Faculty Publications

Marriage equality is sweeping the nation. Four appeals courts recently affirmed district judges’ opinions which invalidated numerous state laws proscribing same-sex marriage. Yet, the Sixth Circuit reversed a number of district jurists, prompting a circuit split that provoked Supreme Court resolution. Because marriage equality’s status is unclear, this piece assesses disposition of the litigation and recommends how to clarify marriage equality.

Certiorari And The Marriage Equality Cases, Carl W. Tobias

Law Faculty Publications

Marriage equality has come to much of the nation. Over 2014, many district court rulings invalidated state proscriptions on same- sex marriage, while four appeals courts upheld these decisions. However, the Sixth Circuit reversed district judgments which struck down bans in Kentucky, Michigan, Ohio, and Tennessee. Because that appellate opinion created a patchwork of differing legal regimes across the country, this Paper urges the Supreme Court to clarify marriage equality by reviewing that determination this Term.

The Market For Leadership In Corporate Litigation, Jessica M. Erickson

Law Faculty Publications

Conventional wisdom has long held that leadership decisions in corporate litigation are best left to the lawyers. Even as the world of corporate litigation has changed dramatically, courts have consistently relied on the lawyers themselves to decide who among them will control litigation decisions. As a result, leadership decisions in corporate litigation are almost always made in private negotiations and back room deals. This Article pulls back the curtain on these decisions, using empirical data to conduct the first in-depth examination into the market for leadership in corporate litigation. This examination reveals a market that bears little resemblance to the …

Particularizing Patent Pleading: Pleading Patent Infringement In A Post-Twombly World, Jonathan L. Moore

Law Student Publications

The Supreme Court's recent jurisprudence has reinvigorated the role of pleading in civil litigation. As a result, in order to survive a motion to dismiss, plaintiffs must now include more detailed allegations that demonstrate a plausible entitlement to relief. This article examines how these changes interact with the pleading requirements for patent infringement litigation. In recent years, the number of patent infringement lawsuits has increased dramatically, in part because of lax notice pleading requirements. This patent litigation explosion imposes exorbitant costs on defendants and has a detrimental effect on innovation. As courts begin to apply the new plausibility pleading regime, …

Time For An Upgrade: Amending The Federal Rules Of Evidence To Address The Challenges Of Electronically Stored Information In Civil Litigation, Jonathan L. Moore

Law Student Publications

In recent years, electronically stored information (ESI) has begun to play an increasingly important role in civil litigation. Although the e-discovery amendments to the Federal Rules of Civil Procedure in 2006 provided guidelines for the discovery of this information, no accompanying changes were made to the Federal Rules of Evidence to govern the admissibility of this information at trial. This article outlines the vastly different ways courts have addressed this problem in three areas: authentication, hearsay, and the best evidence rule. After discussing the various approaches courts take in these areas, this article proposes specific amendments to the Federal Rules …

Shifting Winds: Court Whittles Away At Plaintiffs' Recovery Of Attorney Fees, Carl W. Tobias, Margaret L. Sanner

Law Faculty Publications

A Supreme Court ruling in a case brought by an assisted-living home doesn't offer much assistance to civil rights lawyers. The ruling in Buckhannon Board & Care Home v. West Virginia will frustrate plaintiffs' efforts to recover attorney fees in litigation to vindicate important societal values such as the prevention of discrimination. But it shouldn't come as a big surprise. Buckhannon is only the most recent of numerous High Court decisions since the 1980s that can complicate attempts by plaintiffs lawyers to secure attorney's fees.

Civil Justice Delay And Empirical Data: A Response To Professor Heise, Carl W. Tobias

Law Faculty Publications

One decade ago, Congress undertook an ambitious, controversial effort to reduce expense and delay in the federal civil justice system. The Civil Justice Reform Act ("CJRA") of 1990 instituted unprecedented nationwide experimentation by requiring that all ninety-four federal district courts scrutinize their civil and criminal dockets and then promulgate and apply numerous procedures which district judges believed would save cost and time in civil litigation. Congress also prescribed rigorous assessment of the six principles, guidelines, and techniques of litigation management and expense and delay reduction that federal districts in fact adopted and enforced. Lawmakers provided for an expert, independent evaluator …

Elevated Pleading In Environmental Litigation, Carl W. Tobias

Law Faculty Publications

The recent United States Supreme Court opinion in Leatherman v. Tarrant County Narcotics Intelligence and Coordination Unit is critical to parties and attorneys who participate in environmental litigation. Leatherman proscribed the imposition of pleading requirements that are stricter than those ordinarily applied under Federal Rule of Civil Procedure 8(a). Such heightened pleading requirements compel plaintiffs to plead more facts, and courts can dismiss claims that fall short of the mark.

The Leatherman court considered civil rights actions alleging that municipalities are liable under 42 U.S.C. § 1983.2 Although Leatherman might seem of limited relevance to environmental lawsuits, its holding and …

Environmental Litigation And Rule 11, Carl W. Tobias

Law Faculty Publications

The 1983 amendment to Federal Rule of Civil Procedure 11 has been the most controversial revision in the half-century history of the Federal Rules. Judges have applied amended Rule 11, which requires them to sanction lawyers and parties who do not conduct reasonable inquiries before filing papers, in over 1000 reported opinions, considerably more unreported determinations, and numerous informal contexts. The Rule has engendered much unnecessary satellite litigation and has been implemente4 inconsistently, while attorneys' fees remain the "sanction of choice" for violations. Rule 11 activity has especially disadvantaged civil rights plaintiffs and lawyers, whose lack of resources can make …

Civil Rights Conundrum, Carl W. Tobias

Law Faculty Publications

As a case study of the impediments imposed by the revised F.R.C.P. Rule 11 in civil rights litigation, Professor Tobias relates the story of the Robeson County, N.C. prosecution of Eddie Hatcher and Timothy Jacobs, their subsequent civil rights action, and the ensuing Rule 11 sanctions imposed upon their counsel, as reported in In re Kunstler, 914 F.2d 505 (4th Cir. 1990).

Rule 11 Recalibrated In Civil Rights Cases, Carl W. Tobias

Law Faculty Publications

The United States Supreme Court promulgated the 1983 amendments to the Federal Rules of Civil Procedure out of growing concern about abuse of the civil litigation process. The most controversial aspect of the implementation of these revisions has been judicial enforcement of amended Rule 11 (the Rule) in ways that disadvantage or "chill" civil rights plaintiffs and attorneys. As the federal judiciary enters its eighth year of implementing the Rule, courts apparently have improved their application of it by becoming more solicitous of the needs of civil rights plaintiffs and their counsel, in recognition of the important social function that …

Reassessing Rule 11 And Civil Rights Cases, Carl W. Tobias

Law Faculty Publications

The Advisory Committee on the Civil Rules amended Federal Rule of Civil Procedure (Rule 11) in August 1983 because of increasing concern about attorney abuses in civil lawsuits and about the so-called litigation explosion. The revision commands courts to sanction lawyers and parties who do not undertake reasonable prefiling inquiries. Certain aspects of the new version's implementation provoked substantial controversy which continued virtually undiminished from the amendment's August 1983 effective date at least until the fifth anniversary of its adoption. Perhaps most controversial was the question whether courts' application inhibited the pursuit of legitimate litigation, especially cases involving civil rights …

Review On A Virginia Cause, William Hamilton Bryson

Law Faculty Publications

A book review on A Virginia Cause by B. Lamb.