Law Commons^™

Judicial-Ish Efficiency: An Analysis Of Alternative Dispute Resolution Programs In Delaware Superior Court, Jordan Hicks

Washington and Lee Law Review

Since the late twentieth century, federal and state jurisdictions across the United States have explored the use of Alternative Dispute Resolution (“ADR”) programs to resolve legal disputes. ADR programs provide extrajudicial mechanisms through which parties can resolve their disputes without the delay and expense of a traditional judicial proceeding. Courts and practitioners alike have lauded ADR programs. For litigators, ADR programs are a way to deliver outcomes to clients quickly and efficiently. For courts, ADR programs are a way to remove cases from overcrowded dockets.

While ADR is generally considered to be speedier and more cost-efficient than a trial, little …

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Washington and Lee Law Review

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

Comment: Court Adr Analytics, Benjamin G. Davis

Washington and Lee Law Review

For the reasons in my comments below, Jordan Hicks’s note entitled Judicial-ish Efficiency: An Analysis of Alternative Dispute Resolution Programs in Delaware Superior Court is a tour de force. Its content and methodology suggest a fresh approach to thinking about court-annexed Alternative Dispute Resolution (“ADR”) in general and court-annexed mandatory nonbinding arbitration programs in particular. The meticulous analysis of three different eras (1978–2008, 2008–2018, and 2018–present) of the program, with a focus on judicial efficiency (speed, failure rate, and prejudicial concerns), provides an important template for how this work might be expanded to look at programs in other courts …

The Internet, Personal Jurisdiction, And Daos, Matthew R. Mcguire

Washington and Lee Law Review

Global connectivity is at an all-time high, and sovereign state law has not fully caught up with the technological innovations enabling that connectivity. TCP/IP—the communications protocol allowing computers on different networks to speak with each other—wasn’t adopted by ARPANET and the Defense Data Network until January 1983. That’s only forty years ago. And the World Wide Web wasn’t released to the general public until August 1991, less than thirty-five years ago. The first Bitcoin block was mined on January 3, 2009, less than fifteen years ago.

Legal doctrine doesn’t develop that fast, especially in legal systems heavily based around judicial …

The Future Of Testamentary Capacity, Reid Kress Weisbord, David Horton

Washington and Lee Law Review

Recently, the #FreeBritney saga cast a harsh spotlight on state guardianship systems. Yet despite their serious flaws, guardianship regimes have benefited from waves of reform. Indeed, since the 1970s, most jurisdictions have taken steps to protect the autonomy of people with cognitive, intellectual, or developmental disabilities (CIDD). Likewise, lawmakers are currently experimenting with supported decision-making (SDM): an alternative to guardianship designed to help individuals with CIDD make their own choices. These changes are no panacea, but they have modernized a field that once summarily denied “idiots” and “lunatics” power over their affairs.

However, in a related context, the legal system’s …

The Justiciability Of Cancelled Patents, Greg Reilly

Washington and Lee Law Review

The recent expansion of the Patent Office’s power to invalidate issued patents raises a coordination problem when there is concurrent litigation, particularly where the federal courts have already upheld the patent’s validity. The Federal Circuit has concluded that Patent Office cancellation extinguishes litigation pending at any stage and requires vacating prior decisions in the case. This rule is widely criticized on doctrinal, policy, and separation of powers grounds. Yet the Federal Circuit has reached (almost) the right outcome, except for the wrong reasons. Both the Federal Circuit and its critics overlook that the Federal Circuit’s rule reflects a straightforward application …

The Litigation Landscape Of Fraternity And Sorority Hazing: Defenses, Evidence, And Damages, Gregory S. Parks, Elizabeth Grindell

Washington and Lee Law Review

In recent years, increasing public and media attention has focused on hazing, especially in collegiate fraternities and sororities. Whether it is because of the deaths, major injuries, or litigation, both criminal and civil, collegiate fraternities and sororities have received increased scrutiny. In this Article, we explore a range of tactical considerations that lawyers must consider—from defenses to evidentiary concerns. We also explore how damages are contemplated in the context of hazing litigation.

Civil Rights Equity: An Introduction To A Theory Of What Civil Rights Has Become, John Valery White

Washington and Lee Law Review

This Article argues that civil rights law is better understood as civil rights equity. It contends that the four-decade-long project of restricting civil rights litigation has shaped civil rights jurisprudence into a contemporary version of traditional equity. For years commentators have noted the low success rates of civil rights suits and debated the propriety of increasingly restrictive procedural and substantive doctrines. Activists have lost faith in civil rights litigation as an effective tool for social change, instead seeking change in administrative forums, or by asserting political pressure through social media and activism to compel policy change. As for civil rights …

The Lost Lessons Of Shareholder Derivative Suits, Jessica Erickson

Washington and Lee Law Review

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 …

No Injury? No Class: Proof Of Injury In Federal Antitrust Class Actions Post-Wal-Mart, Rami Abdallah Elias Rashmawi

Washington and Lee Law Review

Over the past twenty years the Supreme Court of the United States has systematically limited the scope of federal class actions brought under Rule 23 of the Federal Rules of Civil Procedure. Importantly, in two landmark decisions, Wal-Mart Stores, Inc. v. Dukes and Comcast Corp. v. Behrend, the Supreme Court cemented a heightened level of inquiry demanded by Rule 23, a stringent, “rigorous analysis.”

This Note analyses the effects of this heightened inquiry on federal antitrust class actions, particularly in situations where the plaintiffs’ method of proving antitrust injury fails to do so for some of the putative class …

Ebay, Permanent Injunctions, And Trade Secrets, Elizabeth A. Rowe

Washington and Lee Law Review

This Article presents the first qualitative empirical review of permanent injunctions in trade secret cases. In addition, it explores the extent to which the Supreme Court’s patent decision in eBay v. MercExchange has influenced the analysis of equitable principles in federal trade secret litigation. Among the more notable findings are that while equitable principles are generally applied in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm …

The Dilemma Of Interstatutory Interpretation, Anuj C. Desai

Washington and Lee Law Review

Courts engage in interstatutory cross-referencing all the time, relying on one statute to help interpret another. Yet, neither courts nor scholars have ever had a satisfactory theory for determining when it is appropriate. Is it okay to rely on any other statute as an interpretive aid? Or, are there limits to the practice? If so, what are they? To assess when interstatutory cross-referencing is appropriate, I focus on one common form of the technique, the in pari materia doctrine. When a court concludes that two statutes are in pari materia or (translating the Latin) “on the same subject,” the court …

Personal Jurisdiction And National Sovereignty, Ray Worthy Campbell

Washington and Lee Law Review

State sovereignty, once seemingly sidelined in personal jurisdiction analysis, has returned with a vengeance. Driven by the idea that states must not offend rival states in their jurisdictional reach, some justices have looked for specific targeting of individual states as individual states by the defendant in order to justify an assertion of personal jurisdiction. To allow cases to proceed based on national targeting alone, they argue, would diminish the sovereignty of any state that the defendant had specifically targeted.

This Article looks for the first time at how this emphasis on state sovereignty limits national sovereignty, especially where alien defendants …

Probate Funding And The Litigation Funding Debate, Jeremy Kidd

Washington and Lee Law Review

Third-party funding of legal claims is becoming more common, and increasingly more controversial. Whether in the legislative arena or in the courts, the fight over whether and how independent parties might provide funding to litigants has become heated. The fight now threatens to spill over into the probate realm, where funders have begun purchasing probate rights from putative heirs. These probate funding transactions share many characteristics with broader litigation funding but also differ in important respects. The meager existing literature tends to address the issue in a pre-biased and methodologically unsound way, making it impossible to properly assess the nature …

Rehabilitating The Nuisance Injunction To Protect The Environment, Doug Rendleman

Washington and Lee Law Review

The Trump Administration has reversed the federal government’s role of protecting the environment. The reversal focuses attention on states’ environmental capacity. This Article advocates more vigorous state environmental tort remedies for nuisance and trespass. An injunction is the superior remedy in most successful environmental litigation because it orders correction and improvement. Two anachronistic barriers to an environmental injunction are the New York Court of Appeals’ decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s early and iconic law-and-economics article, One View of the Cathedral. This Article examines and criticizes both because, by subordinating the injunction to money damages, they undervalue …

Immigrant Defense Funds For Utopians, César Cuauhtémoc García Hernández

Washington and Lee Law Review

No abstract provided.

A Continuing War With Asbestos: The Stalemate Among State Courts On Liability For Take-Home Asbestos Exposure, Meghan E. Flinn

Washington and Lee Law Review

No abstract provided.

Asbestos Wars: In Three Parts, David Partlett

Washington and Lee Law Review

No abstract provided.

Comment: Knowledge Circles And The Duty Of Care, Jill M. Fraley

Washington and Lee Law Review

No abstract provided.

Fear-Based Standing: Cognizing An Injury-In-Fact, Brian Calabrese

Washington and Lee Law Review

No abstract provided.

The Irrepressible Myth Of Celotex: Reconsidering Summary Judgment Burdens Twenty Years After The Trilogy, Adam N. Steinman

Washington and Lee Law Review

No abstract provided.

Are Rules Just Meant To Be Broken? The One-Year Two-Step In Tedford V. Warner- Lambert Co., E. Kyle Mcnew

Washington and Lee Law Review

No abstract provided.

The Political Theory Of The Class Action, Owen M. Fiss

Washington and Lee Law Review

No abstract provided.

Strict Liability Unmasked: The Applicable Statute Of Limitations

Washington and Lee Law Review

No abstract provided.

Saving Statute's Effect On Limitations Of Actions With Long-Arm Jurisdiction

Washington and Lee Law Review

No abstract provided.

The Jury And The Defense Of Insanity, Rita James Simon

Washington and Lee Law Review

No abstract provided.

The Petit Jury In Virginia

Washington and Lee Law Review

No abstract provided.

The Boston Strangler, By Gerold Frank

Washington and Lee Law Review

No abstract provided.

The American Jury, By Harry Kalven, Jr. And Hans Zeisel

Washington and Lee Law Review

No abstract provided.

Jury Trial Of Crimes, Lewis F. Powell, Jr.

Washington and Lee Law Review

No abstract provided.