Law Commons^™

Law School News: A Courtroom Drama Worth Watching 10-22-2023, Suzi Morales

Life of the Law School (1993- )

No abstract provided.

Twenty Years After Krieger V Law Society Of Alberta: Law Society Discipline Of Crown Prosecutors And Government Lawyers, Andrew Flavelle Martin

Articles, Book Chapters, & Popular Press

Krieger v. Law Society of Alberta held that provincial and territorial law societies have disciplinary jurisdiction over Crown prosecutors for conduct outside of prosecutorial discretion. The reasoning in Krieger would also apply to government lawyers. The apparent consensus is that law societies rarely exercise that jurisdiction. But in those rare instances, what conduct do Canadian law societies discipline Crown prosecutors and government lawyers for? In this article, I canvass reported disciplinary decisions to demonstrate that, while law societies sometimes discipline Crown prosecutors for violations unique to those lawyers, they often do so for violations applicable to all lawyers — particularly …

Bending The Rules Of Evidence, Edward K. Cheng, G. Alexander Nunn, Julia Simon-Kerr

Faculty Scholarship

The evidence rules have well-established, standard textual meanings—meanings that evidence professors teach their law students every year. Yet, despite the rules’ clarity, courts misapply them across a wide array of cases: Judges allow past acts to bypass the propensity prohibition, squeeze hearsay into facially inapplicable exceptions, and poke holes in supposedly ironclad privileges. And that’s just the beginning.

The evidence literature sees these misapplications as mistakes by inept trial judges. This Article takes a very different view. These “mistakes” are often not mistakes at all, but rather instances in which courts are intentionally bending the rules of evidence. Codified evidentiary …

Reconsidering The Imposition Of Dual Vicarious Liability In The Borrowed Employee Context: The Singapore Approach In Munshi Mohammad Faiz V Interpro Construction Pte Ltd [2021] 4 Slr 1371 And Hwa Aik Engineering Pte Ltd V Munshi Mohammad [2021] 1 Slr 1288, Danny Ong, Aaron Yoong, Louis Yi Hang Lau

Research Collection Yong Pung How School Of Law

The limits of the law on dual vicarious liability were recently tested in the decisions of Munshi Mohammad Faiz v Interpro Construction Pte Ltd [2021] 4 SLR 1371 and Hwa Aik Engineering Pte Ltd v Munshi Mohammad [2021] 1 SLR 1288, both before the General and Appellate divisions of the High Court. Against the backdrop of these decisions, this case note argues that the approach laid down by the High Court may go some ways in resolving the tension and assist in settling the perennial question of the role of control in dual vicarious liability. In particular, it is argued …

Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll

Law & Economics Working Papers

As the Supreme Court recognized in its 2021 decision in Uzuegbunam v. Preczewski, nominal damages can redress violations of “important, but not easily quantifiable, nonpecuniary rights.” For some plaintiffs who establish a violation of their constitutional rights, nominal damages will be the only relief available. In its 1992 decision in Farrar v. Hobby, however, the Court disparaged the nominal-damages remedy. The case involved the interpretation of federal fee-shifting statutes, which enable prevailing civil rights plaintiffs to recover a reasonable attorney’s fee from the defendant. According to Farrar, a plaintiff can prevail by obtaining the “technical” remedy of nominal damages, but …

Office Of Attorney General Peter F. Neronha, Attorney General: Access To Public Records Act, Open Meetings Act, Attorney General, State Of Rhode Island, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

25th Annual Open Government Summit: Your Guide To The Access To Public Records Act & Open Meetings Act, Peter F. Neronha, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Plaintiffs' Process: Civil Procedure, Mdl, And A Day In Court, Elizabeth Chamblee Burch, Abbe R. Gluck

Scholarly Works

The article focuses on the concept of "plaintiffs process" within the field of civil procedure. It discusses how civil procedure doctrine has traditionally been defendant-centric, focusing on the rights and protections of defendants in legal cases. It examines the role of multidistrict litigation (MDL) in this context and how it impacts plaintiffs rights and access to the courts.

A Further Look At A Hague Convention On Concurrent Proceedings, Paul Herrup, Ronald A. Brand

Articles

The current project of the Hague Conference on Private International Law has reached a critical juncture that requires careful consideration of the terms that delineate the scope of the proposed convention. Work to date has not followed the mandate of the Council on General Affairs and Policy to produce a convention that would deal with concurrent proceedings, understood as including pure parallel proceedings and related actions. In two previous articles we have addressed the practical needs that should be addressed by the concurrent proceedings project and the general architecture of such a convention. The process is now mired in terminological …

Internet Jurisdiction And The 21st Century: Zippo, Calder, And The Metaverse, Gretchen Yelmini

Connecticut Law Review

Internet use in the United States continues to increase at a rate that outpaces the legal system. From reliance on outdated precedent, differing long-arm statutes, and emergent technologies, there are unanswered questions of whether existing precedent is sufficient to handle our increasingly borderless society.

Many courts still rely on the Zippo test despite the exponential advancements in how we use the internet in the twenty-five years since the Western District of Pennsylvania developed a framework for this issue. The Supreme Court has continued to avoid directly addressing the issue. In 2014, the Court left decisions on virtual presence to “another …

Forum Fights And Fundamental Rights: Amenability’S Distorted Frame, James P. George

Faculty Scholarship

Framing—the subtle use of context to suggest a conclusion—is a dubious alternative to direct argumentation. Both the brilliance and the bane of marketing, framing also creeps into supposedly objective analysis. Law offers several examples, but a lesser known one is International Shoe’s two-part jurisdictional test. The framing occurs in the underscoring of defendant’s due process rights contrasted with plaintiff’s “interests” which are often dependent on governmental interests. This equation ignores, both rhetorically and analytically, the injured party’s centuries-old rights to—not interests in—a remedy in an open and adequate forum.

Even within the biased frame, the test generally works, if not …

Amicus Curiae Brief State Of Utah Et. Al. V Walsh Et. Al., Ethan Halman Gonzalez

Honors Theses

In accordance with Rule 29 of the Federal Rules of Appellate Procedure, this amicus curiae is submitted in the defense of Walsh and the Department of Labor in releasing the prudence and loyalty in selecting plan investments and exercising shareholder rights rule in November of 2022. These brief mainly focuses on the arbitrary and capricious standard, the major questions doctrine, and the legal standing the Department of Labor has to issue rules that apply to the Employee Retirement Income Security Act of 1974.

Differentiating Strict Products Liability’S Cost-Benefit Analysis From Negligence, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

Dangerous products may give rise to colossal liability for commercial actors. Indeed, in 2021, the U.S. Supreme Court denied certiorari in Johnson & Johnson v. Ingham, permitting a more than two billion dollar products liability damages award to stand. In his dissenting opinion in another recent products liability case, Air and Liquid Systems Corp. v. DeVries, Justice Gorsuch declared that “[t]ort law is supposed to be about aligning liability with responsibility.” However, in the products liability context, there have been ongoing debates concerning how best to set legal rules and standards on tort liability. Are general principles of …

Asymmetric Review Of Qualified Immunity Appeals, Alexander A. Reinert

Articles

This article presents results from the most comprehensive study to date of the resolution of qualified immunity in the federal courts of appeals and the US Supreme Court. By analyzing more than 4000 appellate decisions issued between 2004 and 2015, this study provides novel insights into how courts of appeals resolve arguments for qualified immunity. Moreover, by conducting an unprecedented analysis of certiorari practice, this study reveals how the US Supreme Court has exercised its discretionary jurisdiction in the area of qualified immunity. The data presented here have significant implications for civil rights enforcement and the uniformity of federal law. …

In Re Tr. Of Burgauer, 138 Nev. Adv. Op. 79 (Dec. 15, 2022), Eva Guevara-Gutierrez

Nevada Supreme Court Summaries

For the District Court of Nevada to have specific personal jurisdiction over a nonresident trustee, they must meet the Calder effects test to show that the defendant purposefully directed his actions towards Nevada. Mere actions towards a plaintiff living in Nevada will not amount to sufficient contacts in Nevada. Margaret must show Steven expressly aimed his actions at Nevada. Margaret failed to bring prima facie evidence of the effects in Nevada. Therefore, Nevada does not have specific personal jurisdiction over Steven.

Moroney V. Young, 138 Nev. Op. 76 (Nov. 23, 2022), Kathryn James

Nevada Supreme Court Summaries

When a plaintiff timely moves for an extension of the service period under NRCP 4(e)(3), the district court must consider the Scrimer factors. This includes factors that relate to the plaintiff’s diligence in attempting service and to any circumstances beyond the plaintiff’s control that may have resulted in the failure to timely serve the defendant. The Court addressed which factors are to be applied when a district court considers a timely motion to extend the service period for a summons and complaint. The Court had previously articulated the relevant factors to determine whether a plaintiff has shown good cause for …

Did The Supreme Court In Transunion V. Ramirez Transform The Article Iii Standing Injury In Fact Test?: The Circuit Split Over Ada Tester Standing And Broader Theoretical Considerations, Bradford Mank

Faculty Articles and Other Publications

Some commentators have criticized the Supreme Court’s 2016 decision in Spokeo, Inc. v. Robins and especially the Court’s 2021 decision in TransUnion LLC v. Ramirez for limiting Congress’ authority to confer standing by statute. For example, in his article, Injury in Fact Transformed, Professor Cass Sunstein argues that TransUnion is a “radical ruling” that uses the injury in fact standing requirement to limit the authority of Congress to enact only statutes that address harms that have a close relationship to traditional or common law harms. By contrast, Professor Ernst Young argues that the Supreme Court’s injury in fact doctrine is …

Understanding Bias In Civil Procedure: Towards An Empirical Analysis Of Procedural Rule-Making's Role In Continuing Inequality, Masai Mcdougall

Journal Articles

This Article uses the history of procedural rules governing “freedom suits” to elucidate the collection of rights that constitute the Western idea of “individual liberty,” and to make a prima facie case that our current Rules of Civil Procedure are biased against the enforcement of those rights by American minorities. This history reveals a systemic inequality in procedural rights that both pre-dates race and favors the consolidation of economic and political power over the enjoyment of the rights that supply the foundation for classical liberalism. I argue that collecting demographic data on litigants’ interaction with our Rules of Civil Procedure …

Theseus In The Labyrinth: How State Constitutions Can Slay The Procedural Minotaur, Marcus Alexander Gadson

Scholarly Works

Civil procedure is one of the biggest hurdles to access to justice. An array of rules and interpretations of those rules have turned lawsuits into meandering mazes with a procedural minotaur waiting to gobble up meritorious claims. The problem is especially acute for the many Americans without abundant resources or access to a lawyer. Fortunately, there is a ready remedy, albeit one access to justice advocates have ignored: state constitutions. Forty state constitutions, which protect hundreds of millions of Americans, generally guarantee "[t]hat all courts shall be open, and every person, for an injury done him in his person, property …

Duped By Dope: The Sackler Family’S Attempt To Escape Opioid Liability And The Need To Close The Non-Debtor Release Loophole, Bryson T. Strachan

Law Student Publications

The opioid epidemic continues to rage on in the United States, ravaging its rural populations. One of its main causes? OxyContin. Purdue Pharma (“Purdue”), the maker of OxyContin, aggressively marketed opioids to the American public while racking up a fortune of over $13 billion dollars for its owners,3 the Sackler family. As a result, roughly 3,000 lawsuits were filed against Purdue and members of the Sackler family. Generally, the lawsuits alleged that Purdue and members of the Sackler family knew OxyContin was highly addictive yet aggressively marketed high dosages of the drug and misrepresented the drug as nonaddictive and without …

Time To Heal: Trauma's Impact On Rape & Sexual Assault Statutes Of Limitations, Fredrick E. Vars, Jillian Miller Purdue

Articles

Short statutes of limitations for sex crimes ask the impossible of many vic- tims: report the crime before they have recovered from the trauma. Perpetra- tors go free as a direct result of the injury they caused. Nearly a third of victims of rape and sexual assaulthave PTSD during their lifetimes. PTSD is associated with three symptoms pertinent to reporting a crime: avoidance cop- ing (avoidingdistressing thoughts, feelings, or reminders of the attack), disso- ciative amnesia (forgetting important or all aspects of the attack), and depression. These symptoms all affect a victim's psychological ability to report a crime before a …

Self-Intervention, Lumen N. Mulligan

Faculty Works

You cannot intervene in your own case, duh! Yet the United States Supreme Court granted certiorari on just this issue: Does Federal Rule of Civil Procedure 24(a)(2) allow state legislative leaders, seeking to represent the state’s sovereign interest, intervene when the attorney general is already representing the state’s sovereign interest. In this article, I contend that the text, history, and practice of Rule 24(a)(2) prohibits such “self-intervention.” I then explore how the fictive approach to state immunity established in Ex parte Young causes this confusion, while concluding that the doctrine, properly understood, focuses on real, not nominal, parties-in-interest. Next, I …

Three-Judge District Courts, Direct Appeals, And Reforming The Supreme Court’S Shadow Docket, Michael E. Solimine

Faculty Articles and Other Publications

The “shadow docket” is the term recently given to a long-standing practice of the United States Supreme Court, in granting or denying requests for stays of lower court decisions, often on a hurried basis with rudimentary briefing and no oral argument, and with little if any explanation by the Court or individual Justices. Recently the practice has received unusual attention inside and outside the legal community, because of its seemingly greater use by the Court in high-profile cases, with the emergency orders sought by the federal government or state officials. Scholars have advanced various reforms to ameliorate the perceived problems …

Lloyd And The Legislative Void: Representative Actions In Transatlantic Context, Suzanne E. Chiodo

All Papers

The Canadian class action regimes have had a strong influence on the development of collective redress procedures in England. Canadian class proceedings legislation provided a model for the competition law class action regime in the UK, and before then, it featured prominently in the Civil Justice Council’s report that recommended the enactment of generic class actions legislation in England. It is fitting, then, that the UK Supreme Court’s recent decision in Lloyd v Google referred to the Canadian jurisprudence on the representative rule, which allows one or more claimants to represent a group with the ‘same interest’. While Lloyd did …

Tawdry Or Honourable? Additional Payments To Representative Plaintiffs In Ontario And Beyond, Suzanne E. Chiodo

All Papers

Additional payments to representative plaintiffs upon the resolution of a class action are widespread in Ontario and elsewhere. However, this subject has received very little attention from appellate courts (at least in Canada), law reformers, and academics. Two conflicting judgments from the Ontario Superior Court have put a spotlight on this practice, however, and it will soon be receiving appellate treatment. The practice has also recently been subject to conflicting appellate decisions in the US. This brings to the fore crucial questions not only about the purpose of such payments, but also about the purposes of class actions in general. …

Good Representatives, Bad Objectors, And Restitution In Class Settlements, Jay Tidmarsh, Tladi Marumo

Journal Articles

his Article uses two recent decisions -one prohibiting incentive awards to class representatives and one permitting disgorgement of side payments to class objectors - to explore deeper connections between class­action settlements and the law of restitution. The failure to correctly apply the law of restitution led both courts astray. First, courts can approve incentive awards, as long as an award properly reflects the benefit that the representative's efforts bestowed on the class. Second, restitution provides a basis to disgorge improper side payments to objectors, but only under conditions different from those that the court described. More broadly, attention to the …

Vacatur, Nationwide Injunctions, And The Evolving Apa, Ronald M. Levin

Scholarship@WashULaw

The courts’ growing use of universal or nationwide injunctions to invalidate agency rules that they find to be unlawful has given rise to concern that such injunctions circumvent dialogue among the circuits, promote forum-shopping, and leave too much power in the hands of individual judges. Some scholars, joined by the Department of Justice, have argued that such judicial decisions should be limited through restrictive interpretations of the Administrative Procedure Act (APA).

This article takes issue with these authorities. It argues that the courts’ use of the APA to vacate a rule as a whole—as opposed to merely enjoining application of …

The Summary Judgment Revolution That Wasn't, Jonathan R. Nash, D. Daniel Sokol

Faculty Articles

The U.S. Supreme Court decided a trilogy of cases on summary judgment in 1986. Questions remain as to how much effect these cases have had on judicial decision-making in terms of wins and losses for plaintiffs. Shifts in wins, losses, and what cases get to decisions on the merits impact access to justice. We assemble novel datasets to examine this question empirically in three areas of law that are more likely to respond to shifts in the standard for summary judgment: antitrust, securities regulation, and civil rights. We find that the Supreme Court’s decisions had a statistically significant effect in …

Philosophical Counselling And Mediation Theory And Practice: Exploring A Pathway To Justice, Nayha Acharya

Articles, Book Chapters, & Popular Press

This paper will demonstrate how philosophical counselling would invaluably contribute to the arena of conflict resolution via mediation and civil justice generally. Mediation is a conflict resolution process that involves a third party who facilitates disputants in arriving at a self-determined resolution. This process is being incorporated into civil justice systems globally, but how mediation should be conducted to achieve truly just outcomes needs immediate and thoughtful attention. At its best, mediation empowers parties to co-create a just and fair resolution to their conflict through a dialogical exploration of their interests, needs, and relevant norms and values. This is dramatically …

Exploring The Role Of Mandatory Mediation In Civil Justice, Nayha Acharya

Articles, Book Chapters, & Popular Press

In this article, I offer a framing of the debates around mandatory mediation that rest on the premise that a legitimate civil justice process depends on unhindered access to an adjudicative system, which must be recognized as a procedural right. This is a keystone of the rule of law, and a valid legal system that deserves the authority that it asserts is contingent on this. My central thesis is that requiring mediation (which is independent of the rule of law) before allowing full access to adjudication compromises the procedural rights of legal subjects, and the rule of law principle. Such …