Law Commons^™

Opioid Litigation Panel, Rick Mountcastle, Paul Farrell, Eric Eyre, Patrick C. Mcginley

University of Richmond Law Review

On February 17, 2023, the University of Richmond Law Review hosted a symposium entitled Overlooked America: Addressing Legal Issues in Rural America. A portion of the event focused on the ongoing opioid epidemic in the United States, including the causes and effects of certain actions taken by players in the pharmaceutical industry. The Opioid Litigation Panel, transcribed below, brought together four of the most prominent leaders in the fight for justice in the opioid epidemic: Mr. Rick Mountcastle, Mr. Paul Farrell, Mr. Eric Eyre, and Professor Patrick McGinley. The University of Richmond Law Review was so honored to have …

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

University of Richmond Law Review

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? …

“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 …

"Special Solicitude": The Growing Power Of State Attorneys General, Mark L. Earley

University of Richmond Law Review

No abstract provided.

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 …

In Re Trulia: Revisited And Revitalized, Emma Weiss

University of Richmond Law Review

No abstract provided.

The Constitutional Limits Of Client-Centered Decision Making, Todd A. Berger

University of Richmond Law Review

No abstract provided.

A Litigator's Guide To The Internet Of Things, Antigone Peyton

Richmond Journal of Law & Technology

Maybe you've heard about the Internet of Things (loT). It's the network of physical objects (or "things") that connect to the Internet and each other and have the ability to collect and exchange data. It includes a variety of devices with sensors, vehicles, buildings, and other items that contain electronics, software, and sensors. Some loT objects have "embedded intelligence," which allows them to detect and react to changes in their physical state. Though there is no specific definition of loT, the concept focuses on how computers, sensors, and objects interact with each other and collect information relating to their surroundings.

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.

Testamentary Capacity Litigation In Virginia, F. Philip Manns Jr.

Richmond Public Interest Law Review

In Rust v. Reid, a 1918 case involving testamentary capacity, the Supreme Court of Virginia wrote the "cases upon this subject are almost without number, and they are not to be reconciled," but Rust referred to "all of the decisions of this court on the subject of competency of jurors," which also had been at issue in the case. However, in its decision in Rust, the Court easily could have leveled the same self-criticism about its cases deciding (1) which party bears the burden of proof in testamentary capacity litigation; (2) whether a presumption of testamentary capacity exists; and (3) …

Testamentary Capacity Litigation In Virginia, F. Philip Manns Jr.

Richmond Journal of Law and the Public Interest

In Rust v. Reid, a 1918 case involving testamentary capacity, the Supreme Court of Virginia wrote the "cases upon this subject are almost without number, and they are not to be reconciled," but Rust referred to "all of the decisions of this court on the subject of competency of jurors," which also had been at issue in the case. However, in its decision in Rust, the Court easily could have leveled the same self-criticism about its cases deciding (1) which party bears the burden of proof in testamentary capacity litigation; (2) whether a presumption of testamentary capacity exists; and (3) …

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 …

The Mosaic Theory In Individual Rights Litigation: On The Genealogy And Expansion Of A Concept, Robert M. Pallitto

Richmond Public Interest Law Review

This article explores the use of the concept of "mosaics" in individual rights litigation, a topic that has received virtually no scholarly attention. Originally a construct used in analysis of intelligence data, the mosaic theory has been transposed to the litigation context and applied in a range of recent case law. Here, the article examines the theory's use in two settings that have important implications for individual liberties: to support the state secrets privilege as a form of information control, and to defeat habeas petitions filed by "war on terror" detainees. In these areas, the mosaic concept is used in …

The Mosaic Theory In Individual Rights Litigation: On The Genealogy And Expansion Of A Concept, Robert M. Pallitto

Richmond Journal of Law and the Public Interest

This article explores the use of the concept of "mosaics" in individual rights litigation, a topic that has received virtually no scholarly attention. Originally a construct used in analysis of intelligence data, the mosaic theory has been transposed to the litigation context and applied in a range of recent case law. Here, the article examines the theory's use in two settings that have important implications for individual liberties: to support the state secrets privilege as a form of information control, and to defeat habeas petitions filed by "war on terror" detainees. In these areas, the mosaic concept is used in …

Election Law, Christopher R. Nolen, Jeff Palmore

University of Richmond Law Review

Other than a few controversial measures, the 2012 Virginia General Assembly made modest changes to Virginia's laws re-garding the administration and conduct of elections. Most activity in this arena concerned issues that had significant federal election implications: specifically, the adoption of changes to strengthen Virginia's existing voter identification law and the enactment of a congressional redistricting plan. This article surveys developments in Virginia election law for the latter part of 2011and the 2012 General Assembly session. The focus is on those statutory developments that have significance or general applicability to the implementation of Virginia's election laws. Consequently, not every election-related …

The Managerial Judge Goes To Trial, Elizabeth G. Thornbug

University of Richmond Law Review

No abstract provided.

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, …

Plausible Screening: A Defense Of Twombly And Iqbal's Plausibility Pleading, Michelle Kallen

Richmond Public Interest Law Review

Part I of the article describes the vision of the 1938 reformers and the changes to the litigation landscape since. Part II describes the Twombly and Iqbal cases in relation to prior pleading standards. Part III builds on Twombly and Iqbal's language to set forth an account of plausibility pleadings that addresses the problems with today's system of litigation. Part IV describes some of the major critiques to plausibility pleading and explains why these critiques do not pose a threat to the account of plausibility pleading set forth in Part III.

Plausible Screening: A Defense Of Twombly And Iqbal's Plausibility Pleading, Michelle Kallen

Richmond Journal of Law and the Public Interest

Part I of the article describes the vision of the 1938 reformers and the changes to the litigation landscape since. Part II describes the Twombly and Iqbal cases in relation to prior pleading standards. Part III builds on Twombly and Iqbal's language to set forth an account of plausibility pleadings that addresses the problems with today's system of litigation. Part IV describes some of the major critiques to plausibility pleading and explains why these critiques do not pose a threat to the account of plausibility pleading set forth in Part III.

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 …

Compelling The Courts To Question Gonzalez V. O Centro: A Public Harms Approach To Free Exercise Analysis, Ari B. Fontecchio

Richmond Public Interest Law Review

Part I will set forth the analytical framework established by the Supreme Court in the RFRA and RLUIPA contexts before 0 Centro." This Part will provide a brief background to RFRA and RLUIPA and set forth the definition of "compelling interest" before 0 Centro. Part II will focus on the decision in 0 Centro; specifically, how the Supreme Court's redefinition of "compelling interest" significantly elevates the government's burden. Part III will compare the government's chance of winning on a "compelling interest" argument before 0 Centro" with the chance of winning in its wake. This Part will discuss the merits, flaws, …