Law Commons^™

Just How Reliable Is The Human Memory? The Admissibility Of Recovered Repressed Memories In Criminal Proceedings, Shannon L. Malone

Touro Law Review

No abstract provided.

I’Ll See You In Court, But Not Pursuant To Dasa, Adam I. Kleinberg, Alex Eleftherakis

Touro Law Review

No abstract provided.

Group Defamation, Power, And A New Test For Determining Plaintiff Eligibility, Jeffrey Greenwood

Fordham Intellectual Property, Media and Entertainment Law Journal

In the fall of 2014, Rolling Stone Magazine published an article describing the rape of a woman at a University of Virginia fraternity house. The story turned out to be false, and members of the fraternity sued for defamation. The suit raises an interesting question: under what circumstances may anonymous individual members of the fraternity recover? This Note describes the case, related common and constitutional law, as well as differences in group defamation doctrine across jurisdictions. After detailing problems with the existing paradigm, the Note proposes a new method for performing the analysis.

A Cause Of Action, Anyone?: Federal Equity And The Preemption Of State Lalw, Henry Paul Monaghan

Notre Dame Law Review

In this very brief Essay, I focus on aspects of a topic on which both Danny and I have written and on which our reasoning differed: federal court authority, “sitting in equity,” to enjoin enforcement of state law on federal preemption grounds. In a coercive action brought by the state to enforce the state law, the federal act could of course be set up as a defense. Suppose, however, that alleging “arising under” subject-matter jurisdiction, the plaintiff sues the appropriate state officials to restrain enforcement of the state statute. Many such challenges are readily entertained on the merits, often because …

Missouri’S Statutory Cause Of Action For Medical Negligence: Legitimate Application Of Legislative Authority Or Violation Of Constitutional Rights?, Emily Mace

Missouri Law Review

This Note discusses whether SB 239 is likely to survive future arguments against its constitutionality. Part II describes the bases upon which damages caps have been challenged in Missouri and the role of the right to trial by jury in analyzing damages caps. Part III then provides a short procedural history of SB 239. Finally, Part IV discusses whether SB 239 attempts to alter a common law cause of action in a way that renders the statute unconstitutional, or whether it abolishes and recreates the cause of action in a manner permitted by the Missouri Constitution.

Reconstructing Pleading: Twombly, Iqbal, And The Limited Role Of The Plausibility Inquiry, Stephen R. Brown

Akron Law Review

Although critics have generally failed to appreciate the limited role of the plausibility inquiry, it is still necessary in some cases. I will therefore, in the discussion of plausibility within the three-step framework, provide a general defense of Twombly and Iqbal by recasting the decisions in light of a plaintiff‘s burden to certify to a court that the factual contentions in a complaint ―will likely have evidentiary support under Rule 11. Under this view of the plausibility inquiry, a court acts as a neutral third-party that simply evaluates a plaintiff‘s ability to predict her own likelihood of success. Instead, a …

Export Controls - A Private Cause Of Action Under The Export Administration Act Of 1979, Wilbur Owens

Georgia Journal of International & Comparative Law

No abstract provided.

Transamerica Mortgage Advisors, Inc. V. Lewis: An Analysis Of The Supreme Court's Definition Of An Implied Right Of Action , Nancy E. Underwood

Pepperdine Law Review

No abstract provided.

Quantitative Proof Of Reputational Harm, Meiring De Villiers

Fordham Journal of Corporate & Financial Law

No abstract provided.

Statutory Standing And The Tyranny Of Labels, Radha A. Pathak

Oklahoma Law Review

Constitutional and prudential standing doctrines have received an abundance of scholarly consideration. Statutory standing, in contrast, has remained largely unexplored. The Supreme Court’s use of the term is relatively consistent and unobjectionable, but the meaning that many lower courts ascribe to it is anything but innocuous. This article develops a conceptual framework for understanding the different ways in which different courts conceive of statutory standing. Using the Employee Retirement Income Security Act of 1974 (“ERISA”) as a paradigmatic example, it attempts to illustrate the pernicious effects that often result from common misconceptions of statutory standing in disputes involving purely private …

A Unified Theory Of 28 U.S.C. § 1331 Jurisdiction, Lumen N. Mulligan

Vanderbilt Law Review

Section 1331, Title 28 of the United States Code is the general federal question jurisdictional statute, which grants federal district courts with original subject matter jurisdiction over "all civil actions arising under the Constitution, laws, or treaties of the United States."' This statute grounds the majority of civil actions heard in federal court. Given the weighty doctrinal3 and pragmatic consequences that flow from determining whether a claim falls within the scope of § 1331, it is surprising to learn that we lack a coherent view of what statutory federal question jurisdiction entails. Professor Mishkin famously forwarded the classic theory that …

Learning The Wrong Lessons From "An American Tragedy": A Critique Of The Berger-Twerski Informed Choice Proposal, David E. Bernstein

Michigan Law Review

Margaret Berger and Aaron Twerski are among the leading scholars in their respective fields of Evidence and Products Liability. I have benefited from their work on many occasions. Precisely because of the deserved respect and esteem in which Berger and Twerski are held-not to mention the prominence of their forum, the Michigan Law Review-their proposal to create a new "informed choice" cause of action in pharmaceutical litigation is likely to receive sympathetic attention. Because I believe that their proposal is ill-conceived and dangerous, I feel compelled (with some trepidation) to write this response. Berger and Twerski propose that courts recognize …

From The Wrong End Of The Telescope: A Response To Professor David Bernstein, Margaret A. Berger, Aaron D. Twerski

Michigan Law Review

On the pages of this law review, in an article entitled Uncertainty and Informed Choice: Unmasking Daubert, the authors argued for the recognition of a new product liability cause of action when drug companies fail to warn about uncertain risks attendant to the use of non-therapeutic drugs whose purpose is to enhance lifestyle. We noted that in the post-Daubert era, plaintiffs have faced increasing difficulty in proving that a given toxic agent was causally responsible for the injuries suffered after ingesting a drug. That plaintiffs cannot overcome the barriers to proving injury causation does not mean that defendants have met …

The Flatow Amendment And State-Sponsored Terrorism, Joseph Keller

Seattle University Law Review

This article argues that the Flatow Amendment does not provide a cause of action against a foreign state itself and, further, that judicial consultation of the State Department is appropriate and desirable in cases affecting foreign policy, such as those requiring interpretation of the Flatow Amendment. Part I analyzes early judicial interpretation of the Flatow Amendment, examine and critique the methodology of Cronin and its progeny, explain application of the Charming Betsy principle to this line of cases, and conclude that the Flatow Amendment provides a cause of action against the officials, employees, or agents of a foreign state, but …

From Poverty To Abuse And Back Again: The Failure Of The Legal And Social Services Communities To Protect Foster Children, Sharon Balmer

Fordham Urban Law Journal

After decades of legislative reform, stories of foster care abuse still appear on the fron pages of our newspapers, and foster children who are injured while in protective care are turning to the courts to change the system. It is still relatively difficult for a child to prevail in an action against child protective workers and agencies. Opinions addressing children’s issues are few, and courts seem hesitant to expand causes of action. This Comment explores the current state of children’s legal remedies for injuries incurred as the result of a foster care placement. Part I describes the foster care system …

Wrongful Birth And Wrongful Conception: A Parent's Need For A Cause Of Action, Mary B. Sullivan

Journal of Law and Health

The purpose of this note is to demonstrate the need for wrongful birth and wrongful conception claims. Arguments have been made that these claims should be combined into one cause of action. The rationale for this argument is that by combining the two claims, chaos in the courts will be reduced. This note will show the need to maintain these claims as separate from one another. This note also demonstrates the proper stance of the courts in rejecting the wrongful life cause of action. Part II of this note gives an overview of medical malpractice and the claims of wrongful …

Emerging Trends For Products Liability: Market Share Liability, Its History And Future, Frank J. Giliberti

Touro Law Review

No abstract provided.

Brown V. State Of New York: Judge Simons Says New York State Can Be Held Liable For Money Damages, Eric J. Stockel

Touro Law Review

No abstract provided.

Gift Or Loan Of State Money

Touro Law Review

No abstract provided.

Equal Protection

Touro Law Review

No abstract provided.

Private Loans

Touro Law Review

No abstract provided.

Equal Protection

Touro Law Review

No abstract provided.

Federal Rule Of Evidence 407: Should It Apply To Products Liability?, Patricia A. Brass

Touro Law Review

No abstract provided.

Equal Protection

Touro Law Review

No abstract provided.

Scared To Death: A Cause Of Action For Aids Phobia, Harris J. Zakarin

Touro Law Review

No abstract provided.

Prohibition Against Use Of State Money For Private Undertaking

Touro Law Review

No abstract provided.

The Noseworthy Doctrine: A Threepart Rule For Its Application, Steven D. Jannace

Touro Law Review

No abstract provided.

A Plea For Help: Pleading Problems In Section 1983 Municipal Liability Claims, Evan S. Schwartz

Touro Law Review

No abstract provided.

Interference With Prospective Civil Litigation By Spollation Of Evidence: Should Texas Adopt A New Tort., Philip A. Lionberger

St. Mary's Law Journal

Texas courts should adopt a tort for spoliation of evidence. Spoliation of evidence is the tampering with, interference with, loss of, or destruction of evidence. Spoliation of evidence is a serious legal problem because it increases a litigant’s difficulty in proving a cause of action or a defense. Evidence destruction may also increase litigation costs and cause the trial court to make factfinding errors. Texas courts should adopt the tort of spoliation of evidence because it compensates injured litigants and deters future acts of spoliation. Another reason for adopting the tort for spoliation of evidence is the inadequacy of alternative …

Case Digest, Law Review Staff

Vanderbilt Journal of Transnational Law

Private Citizens Do Not Have a Cause of Action to Enforce Judgments of the International Court of Justice--Committee of United States Citizens in Nicaragua v. Reagan, 859 F.2d 929 (D.C. Cir. 1988)

The Foreign Sovereign Immunities Act Precludes Domestic Court Jurisdiction Over a Cause of Action Arising Out of Airplane Crash in a Foreign Country When the Airplane Is Owned by an Instrumentality of the Foreign Government -Compania Mexicana de Aviacion v. U.S. Dist. Court, 859 F.2d 1354(9th Cir. 1988).

An Unrecognized Panamanian Regime Lacks Standing to Intervene in an Action Brought by the Recognized Panamanian Government to Enjoin the …