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Full-Text Articles in Litigation

Litigating Trauma As Disability In American Schools, Taylor N. Mullaney May 2018

Litigating Trauma As Disability In American Schools, Taylor N. Mullaney

Northwestern Journal of Law & Social Policy

No abstract provided.


Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff May 2018

Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff

Faculty Scholarship

After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of ...


Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang May 2018

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

Faculty Scholarship

Our aim in this essay is to leverage archival research, data and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, as a means to illuminate the prospects for retrenchment in the current political landscape. We follow the scheme of the book by separately considering the prospects for federal litigation retrenchment in three lawmaking sites: Congress, federal court rulemaking under the Rules Enabling Act, and the Supreme Court. Although pertinent data on current retrenchment initiatives are limited, our historical data and comparative institutional perspectives should afford a basis for informed prediction. Of course, little in ...


Universal, Not Nationwide, And Never Appropriate: On The Scope Of Injunctions In Constitutional Litigation, Howard Wasserman May 2018

Universal, Not Nationwide, And Never Appropriate: On The Scope Of Injunctions In Constitutional Litigation, Howard Wasserman

Howard M Wasserman

Federal district courts are routinely issuing broad injunctions prohibiting the federal government from enforcing constitutionally invalid laws, regulations, and policies on immigration and immigration-adjacent issues. Styled “nationwide injunctions,” they prohibit enforcement of the challenges laws not only against the named plaintiffs, but against all people and entities everywhere.

The first problem with these injunctions is one of nomenclature. “Nationwide” suggests something about the “where” of the injunction, the geographic scope in which it protects. The better term is “universal injunction,” which captures the real controversy over the “who” of the injunction, as courts purport to protect the universe of all ...


When Should Force Directed Against A Police Officer Be Justified Under The Maine Criminal Code? - Toward A Coherent Theory Of Law Enforcement Under The Code's Justification Provision, F. Todd Lowell May 2018

When Should Force Directed Against A Police Officer Be Justified Under The Maine Criminal Code? - Toward A Coherent Theory Of Law Enforcement Under The Code's Justification Provision, F. Todd Lowell

Maine Law Review

In State v. Clisham, the Law Court unanimously found that section 104(1) of the Maine Criminal Code operated to justify the use of non-deadly force by a private citizen seeking to prevent an illegal search of his house by police officers. This Comment will focus on the justification provisions of the Maine Criminal Code as they relate to law enforcement practices and will examine how the Law Court's most recent decision interpreting one of the provisions affects that relationship. This Comment will argue that the policy underlying the justification provisions mandates that the justification defense be denied to ...


Confronting Silence: The Constitution, Deaf Criminal Defendants, And The Right To Interpretation During Trial, Deirdre M. Smith May 2018

Confronting Silence: The Constitution, Deaf Criminal Defendants, And The Right To Interpretation During Trial, Deirdre M. Smith

Maine Law Review

For most deaf people, interactions with the hearing community in the absence of interpretation or technological assistance consist of communications that are, at most, only partly comprehensible. Criminal proceedings, with the defendant's liberty interest directly at stake, are occasions in which the need for deaf people to have a full understanding of what is said and done around them is most urgent. Ironically, the legal “right to interpretation” has not been clearly defined in either statutory or case law. Although the federal and state constitutions do not provide a separate or lesser set of rights for deaf defendants, their ...


When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner May 2018

When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner

Texas A&M Law Review

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on ...


China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow May 2018

China's Anti-Corruption Crackdown And The Foreign Corrupt Practices Act, Daniel C.K. Chow

Texas A&M Law Review

China’s highly publicized crackdown on corruption may affect the type and number of cases in China that arise under the Foreign Corrupt Practices Act (“FCPA”), but it should not be assumed that the crackdown will necessarily lead to fewer FCPA prosecutions. Although there is some overlap of the goals of China’s corruption crackdown and the goals of the FCPA, China’s crackdown also serves important goals of the ruling Communist Party. The main goal of the current crackdown is to reinforce the Party’s power by targeting enemies and rivals of the current leadership. The crackdown is not ...


Formailzing Chapter 9'S Experts, Laura N. Coordes May 2018

Formailzing Chapter 9'S Experts, Laura N. Coordes

Michigan Law Review

Chapter 9 of the U.S. Bankruptcy Code has many shortcomings. One of the most persistent, yet understudied, problems judges face in chapter 9 is also a problem that exists in other areas of bankruptcy law: the sheer difficulty of applying generalized plan confirmation standards to wildly different, highly specialized entities. In practice, judges have turned to experts—individuals well versed in municipal finance, mediation, and the particular debtor com-munity—to help overcome this problem in chapter 9. These experts often per-form critical roles in a municipal bankruptcy case, including conducting mediations, investigating the municipality’s finances, and even helping ...


A (Thigh) Gap In The Law: Addressing Egregious Digital Manipulation Of Celebrity Images, Jessica L. Williams-Vickery May 2018

A (Thigh) Gap In The Law: Addressing Egregious Digital Manipulation Of Celebrity Images, Jessica L. Williams-Vickery

Georgia State University Law Review

In 2012, world-renowned supermodel Coco Rocha agreed to be photographed for the cover of one of Elle’s magazine publications, Elle Brazil. Rocha posed for the pictures in a dress with significant cutouts, covered only by a sheer layer of skin-toned fabric. In keeping with her firm policy of no full or partial nudity, Rocha wore a bodysuit underneath the dress to limit her exposure. When Elle published the magazine, the final product shocked Rocha; the magazine had altered the image to remove her bodysuit, giving the impression Rocha had shown more skin than she in fact had. Rocha took ...


Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii May 2018

Take This Job And Shove It: The Pragmatic Philosophy Of Johnny Paycheck And A Prayer For Strict Liability In Appalachia, Eugene "Trey" Moore Iii

The Scholar: St. Mary's Law Review on Race and Social Justice

Abstract forthcoming


Life After Daubert V. Merrell Dow: Maine As A Case Law Laboratory For Evidence Rule 702 Without Frye, Leigh Stephens Mccarthy Apr 2018

Life After Daubert V. Merrell Dow: Maine As A Case Law Laboratory For Evidence Rule 702 Without Frye, Leigh Stephens Mccarthy

Maine Law Review

In reaching its recent decision in Daubert v. Merrell Dow Pharmaceuticals, Inc., the United States Supreme Court grappled not with case law but with fundamental questions about the nature of science and its role in law. The court in Daubert addressed the problematic issue of admissibility of expert scientific testimony. In the end the Court rejected as an exclusionary rule the venerable standard set in 1923 by Frye v. United States. Frye held that scientific testimony was to be excluded unless it had gained “general acceptance” in its field. Daubert held that Rule 702 of the Federal Rules of Evidence ...


Litigation Academy Helps Lawyers Hone Skills 4-30-2018, Katie Mulvaney, Roger Williams University School Of Law Apr 2018

Litigation Academy Helps Lawyers Hone Skills 4-30-2018, Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey Apr 2018

Asarco Llc V. Atlantic Richfield Company, Ryan L. Hickey

Public Land and Resources Law Review

The Comprehensive Environmental Response, Compensation, and Liabiltiy Act, commonly known as CERCLA, facilitates cleanup of hazardous waste sites and those contaminated by other harmful substances by empowering the Environmental Protection Agency to identify responsible parties and require them to undertake or fund remediation. Because pollution sometimes occurrs over long periods of time by multiple parties, CERCLA also enables polluters to seek financial contribution from other contaminators of a particular site. The Ninth Circuit clarified the particuar circumstances under which contribution actions may arise in Asarco LLC v. Atlantic Richfield Co., holding non-CERCLA settlements may give rise to CERCLA contribution actions ...


Aggregation On Defendants' Terms: Bristol-Myers Squibb And The Federalization Of Mass-Tort Litigation, Andrew D. Bradt, D. Theodore Rave Apr 2018

Aggregation On Defendants' Terms: Bristol-Myers Squibb And The Federalization Of Mass-Tort Litigation, Andrew D. Bradt, D. Theodore Rave

Boston College Law Review

Although it is destined for the personal jurisdiction canon, the Supreme Court’s eight-to-one decision in Bristol-Myers Squibb Co. v. Superior Court does little to clarify that notoriously hazy doctrine. It does, however, significantly alter the balance of power in complex litigation. Bristol-Myers is a landmark case because it makes both mass-tort class actions and mass joinders impracticable in almost any state court outside of the defendant’s home states. With federal courts already hostile to class actions, plaintiffs who want to aggregate their claims will have to do so on the defendant’s terms: either on the defendant’s ...


Crowdfunding Civil Justice, Ronen Perry Apr 2018

Crowdfunding Civil Justice, Ronen Perry

Boston College Law Review

The Article provides a systematic law and economics analysis of civil litigation crowdfunding. It first distinguishes between investment-based and non-investment-based crowdfunding models. Investment-based litigation crowdfunding is generally a welcome phenomenon, because it enables parties to pursue meritorious claims and defenses without generating a significant risk of frivolous litigation. Thus, it should be minimally regulated by securing disclosure of relevant information to potential investors. Non-investment-based crowdfunding of process costs should be subject to professional vetting, which will inhibit frivolous claims and defenses that waste scarce administrative resources and do not further the underlying goals of civil law. Non-investment-based crowdfunding of outcome ...


Climate Change Litigation And Narrative: How To Use Litigation To Tell Compelling Climate Stories, Grace Nosek Apr 2018

Climate Change Litigation And Narrative: How To Use Litigation To Tell Compelling Climate Stories, Grace Nosek

William & Mary Environmental Law and Policy Review

No abstract provided.


Basic Trial Advocacy, Michael W. Mullane Apr 2018

Basic Trial Advocacy, Michael W. Mullane

Maine Law Review

Mary Crates taught me to “begin as you mean to go on.” Peter Murray's book is a good place to begin for those embarking on a life of trial advocacy. For those of us whose beginnings are distant and often painful memories, it is an excellent reminder of where we meant to go. Trial advocacy is an infinitely complex task. This simple fact is both its joy and curse. Teaching trial advocacy is equally difficult. There is no “never” and no “always.” There is a host of commonly accepted maxims, many of which are contradictory on their face and ...


Diagonal Public Enforcement, Zachary D. Clopton Apr 2018

Diagonal Public Enforcement, Zachary D. Clopton

Cornell Law Faculty Publications

Civics class teaches the traditional mode of law enforcement: The legislature adopts a regulatory statute, and the executive enforces it in the courts. But in an increasingly interconnected world, a nontraditional form of regulatory litigation is possible in which public enforcers from one government enforce laws adopted by a second government in the second government’s courts. That is, one government provides the executive while the second provides the legislature and the judiciary. I call this nontraditional form “diagonal public enforcement.”

Although diagonal public enforcement has escaped systematic study, one can find examples in U.S. courts going back more ...


Govern Yourself Accordingly: Crafting Effective Demand Letters, Jason G. Dykstra Mar 2018

Govern Yourself Accordingly: Crafting Effective Demand Letters, Jason G. Dykstra

Jason Dykstra

An effective demand letter can expediently resolve a dispute without litigation. But a poorly conceived demand letter can accelerate a dispute toward litigation and even generate negative publicity. Like all correspondence, demand letters need to be tailored in tone and content for varied audience, both the intended recipient and other foreseeable recipients.

Beyond the intended recipient, the audience for a demand letter could encompass insurance adjusters, in-house counsel, and perhaps even the public via social media or press coverage. Therefore, an effective demand letter should not only be polite but firm, but also tell a persuasive story that evokes incredulity ...


Rwu First Amendment Blog: David Logan's Blog: Weather Forecast For March 25: Stormy On 60 Minutes? 03-18-2018, David A. Logan Mar 2018

Rwu First Amendment Blog: David Logan's Blog: Weather Forecast For March 25: Stormy On 60 Minutes? 03-18-2018, David A. Logan

Law School Blogs

No abstract provided.


Using Clinical Practice Guidelines And Knowledge Translation Theory To Cure The Negative Impact Of The National Hospital Peer Review Hearing System On Healthcare Quality, Cost, And Access, Katharine Van Tassel Mar 2018

Using Clinical Practice Guidelines And Knowledge Translation Theory To Cure The Negative Impact Of The National Hospital Peer Review Hearing System On Healthcare Quality, Cost, And Access, Katharine Van Tassel

Katharine Van Tassel

This Article starts with a history of the growth of hospital peer review and then examines the merits of the rationales that motivated the passage of the Health Care Quality Improvement Act of 1986 ('HCQIA'), which catapulted peer review into the national system that exists today. The Article next explains how the peer review hearing process works and how HCQIA turns private hospitals into small, individual quasi-regulatory agencies. The Article goes on to critique the 'bad apples' approach taken by hospital peer review in light of the growing body of empirical research that supports a systems improvement approach to dealing ...


Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel Mar 2018

Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel

Katharine Van Tassel

This Article proposes a solution to the problems associated with the current use of vague standards in peer review. This Article will examine the proposal that medical staffs switch from ad hoc judicial decision-making to rule-making. This switch will allow medical staffs to abandon the troublesome practice of applying vague 'standard of care' measures ex post facto. In its stead, express contractual terminology could be adopted, such as 'expectations of performance,' which incorporates specifically chosen and uniquely tailored clinical practice guidelines ('CPGs') directly into the medical staff by-laws. Describing the expectations of physician performance in express contractual terms enables physicians ...


Regulating In Uncertainty: Animating The Public Health Product Safety Net To Capture Consumer Products Regulated By The Fda That Use Innovative Technologies, Including Nanotechnologies, Genetic Modification, Cloning, And Lab Grown Meat, Katharine A. Van Tassel Mar 2018

Regulating In Uncertainty: Animating The Public Health Product Safety Net To Capture Consumer Products Regulated By The Fda That Use Innovative Technologies, Including Nanotechnologies, Genetic Modification, Cloning, And Lab Grown Meat, Katharine A. Van Tassel

Katharine Van Tassel

This Article will use nanotechnology as an example that highlights how regulation based on novelty rather than hazard achieves the proper balance between protecting public health while encouraging innovation through the animation of the public health product safety net. In Part II, this Article starts by explaining what nanotechnology is and the remarkable growth of its use in everyday consumer products. It then summarizes the steadily increasing number of studies that suggest that there are likely to be serious health risks associated with the use of nanotech consumer products. Next, it explains how the FDA [Food and Drug Administration] is ...


Assumption Of Risk As A Defense To Negligence, Gregory S. Sergienko Mar 2018

Assumption Of Risk As A Defense To Negligence, Gregory S. Sergienko

Greg Sergienko

This article will revisit the history of assumption of risk in California and elsewhere and suggest that the traditional doctrine should be modified and revived, despite the contrary approach of the Restatement (Third) of Torts. In the first part of the article, I will describe the ambiguities in the statements of assumption of risk that existed before the adoption of comparative negligence. I will show that Knight v. Jewett, which rejected assumption of risk, misinterpreted Li v. Yellow Cab Co., in which the California Supreme Court adopted a comparative negligence rule. Moreover, even if the Knight case was defensible on ...


A Call For Consistency: State V. Caouette Is No Longer Viable In Light Of Colorado V. Connelly And State V. Eastman, Donald W. Macomber Mar 2018

A Call For Consistency: State V. Caouette Is No Longer Viable In Light Of Colorado V. Connelly And State V. Eastman, Donald W. Macomber

Maine Law Review

This Article challenges the Law Court's expansive interpretation in State v. Caouette of the scope of the privilege against self-incrimination embodied in Article I, section 6 of the Maine Constitution in the context of reviewing claims of the involuntariness of a confession. The court's declaration that a reliable confession must be suppressed on state constitutional grounds based solely on a suspect's internal factors, and in the absence of any police overreaching in obtaining the confession, contradicted two centuries of constitutional jurisprudence requiring some form of government action to implicate the protections of the Bill of Rights and ...


Long V. Long: Law Court Ruling Changes The Disposition Of Joint Real Property On Divorce, Marc J. Veilleux Mar 2018

Long V. Long: Law Court Ruling Changes The Disposition Of Joint Real Property On Divorce, Marc J. Veilleux

Maine Law Review

In Long v. Long the Maine Supreme Judicial Court, sitting as the Law Court, affirmed a district court divorce decree dividing the parties' residence of thirteen years as marital property, even though the majority of the funds used for its purchase were traceable to non-marital property the husband had acquired prior to the marriage. The governing statute instructed the district court to make an “equitable” disposition of all property acquired by the spouses during marriage, but required that it first “set apart to each spouse the spouse's [separate] property,” including property acquired during marriage by a spouse “in exchange ...


Newsroom: Court As Classroom 03-01-2018, Roger Williams University School Of Law Mar 2018

Newsroom: Court As Classroom 03-01-2018, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Serving Pets In Poverty: A New Frontier For The Animal Welfare Movement, Amanda Arrington, Michael Markarian Feb 2018

Serving Pets In Poverty: A New Frontier For The Animal Welfare Movement, Amanda Arrington, Michael Markarian

Sustainable Development Law & Policy

No abstract provided.


How Fast Is Too Fast? Osha’S Regulation Of The Meat Industry’S Line Speed And The Price Paid By Humans And Animals, Israel Cook Feb 2018

How Fast Is Too Fast? Osha’S Regulation Of The Meat Industry’S Line Speed And The Price Paid By Humans And Animals, Israel Cook

Sustainable Development Law & Policy

No abstract provided.