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Full-Text Articles in Litigation

The Sue-And-Settle Phenomenon: Its Impact On The Law, Agency, And Society, Katie L. Colton May 2019

The Sue-And-Settle Phenomenon: Its Impact On The Law, Agency, And Society, Katie L. Colton

All Graduate Theses and Dissertations

Sue-and-settle is the name applied to a federal agency’s use of litigation to create policy outside of the normal regulatory process. This paper discusses the impact that the sue-and-settle policy has had on Congress, the judiciary, and the Environmental Protection Agency. Specifically, this paper will discuss the issues caused by the perception of collusion within the sue-and-settle policy. First, this paper examines whether a relationship occurs between the litigants. The paper then discusses whether the relationship between the litigants in sue-and-settle cases tends to be collusive or not. The second part of the paper examines how Congress, the Environmental ...


Unfamiliar Justice: Indigent Criminal Defendants' Experiences With Civil Legal Needs, Lauren Sudeall, Ruth Richardson Apr 2019

Unfamiliar Justice: Indigent Criminal Defendants' Experiences With Civil Legal Needs, Lauren Sudeall, Ruth Richardson

Lauren Sudeall

Our legal system - and much of the research conducted on that system - often separates people and issues into civil and criminal silos. However, those two worlds intersect and influence one another in important ways. The qualitative empirical study that forms the basis of this Article bridges the civil-criminal divide by exploring the life circumstances and events of public defender clients to determine how they experience and respond to civil legal problems.

To date, studies addressing civil legal needs more generally have not focused on those individuals enmeshed with the criminal justice system, even though that group offers a rich source ...


Save Our Sound Obx, Inc. V. North Carolina Department Of Transportation, Mitch L. Werbell V Apr 2019

Save Our Sound Obx, Inc. V. North Carolina Department Of Transportation, Mitch L. Werbell V

Public Land & Resources Law Review

The Fourth Circuit Court of Appeals recently ruled in favor of several governmental agencies seeking to construct a new bridge in the Pamlico Sound adjacent to North Carolina’s Outer Banks. For years, state and federal agencies have put forth a massive coordinated effort to address the constant weather damage and erosion which occurs to a section of North Carolina Highway 12. The court found the agencies properly cleared NEPA’s environmental review requirements for the bridge’s construction. Additionally, the opponent-litigants’ efforts to add claims challenging the project, based on new information about a shipwreck in the bridge’s ...


Original Meaning And The Death Penalty, John Stinneford Apr 2019

Original Meaning And The Death Penalty, John Stinneford

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Prosecuting A Capital Case, Jeff Thomson Apr 2019

Prosecuting A Capital Case, Jeff Thomson

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


The Death Penalty: A Dialogue On Morality And The Law: Remarks By Steve Kaplan, Steve Kaplan Apr 2019

The Death Penalty: A Dialogue On Morality And The Law: Remarks By Steve Kaplan, Steve Kaplan

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


The Death Penalty: A Dialogue On Morality And The Law: Remarks By Jeanne Bishop, Jeanne Bishop Apr 2019

The Death Penalty: A Dialogue On Morality And The Law: Remarks By Jeanne Bishop, Jeanne Bishop

University of St. Thomas Journal of Law and Public Policy

No abstract provided.


Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis Mar 2019

Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis

Paul Lewis

With the Civil Justice Reform Act (CJRA), Congress attempted to further a trend that the federal judiciary had undertaken largely on its own initiative. Sensing a critical need to address the mounting expense and delay of federal civil litigation, Congress, like the judiciary, sought to increase the degree of early and active involvement of judges in the adjudicatory process. The result of this mandate has been a further emphasis on the role of the judge as a case manager. As a necessary corollary, the liberty and self-determination of individual litigants-ideals that have historically been seen as philosophical cornerstones of the ...


Why Consumer Defendants Lump It, Emily S. Taylor Poppe Mar 2019

Why Consumer Defendants Lump It, Emily S. Taylor Poppe

Northwestern Journal of Law & Social Policy

No abstract provided.


Banning Solitary For Prisoners With Mental Illness: The Blurred Line Between Physical And Psychological Harm, Rosalind Dillon Mar 2019

Banning Solitary For Prisoners With Mental Illness: The Blurred Line Between Physical And Psychological Harm, Rosalind Dillon

Northwestern Journal of Law & Social Policy

No abstract provided.


Full Cost In Translation: Awarding Expert Witness Fees In Copyright Litigation, Nicholas Vennekotter Mar 2019

Full Cost In Translation: Awarding Expert Witness Fees In Copyright Litigation, Nicholas Vennekotter

Fordham Law Review

When deciding whether to bring or defend against copyright infringement claims, the cost of litigation plays a critical role in the minds of potential litigants. The cost of retaining experts, particularly, is a large factor in this calculus. Although U.S. courts generally require each party to cover the cost of their own legal fees during litigation, the Copyright Act of 1976 permits courts, in their discretion, to allow the prevailing party to recover “full costs.” Yet, the language “full costs” is considered ambiguous, which leads to inconsistent awards of costs among the appellate courts. The circuits disagree whether the ...


Too Plain To Be Misunderstood: Sovereign Immunity Under The Arkansas Constitution, Robert C. Dalby Feb 2019

Too Plain To Be Misunderstood: Sovereign Immunity Under The Arkansas Constitution, Robert C. Dalby

Arkansas Law Review

The framers of the constitution certainly knew that instances of hardship would result from the prohibition of suits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effect to it. Given the fluid nature of the law, time is often the greatest enemy of clarity in court precedent. From law students to experienced judges, anyone who has tried to research the doctrine of sovereign immunity under the Arkansas Constitution has surely struggled with that enemy as they sift through the ...


The Ever-Changing Landscape Of Informed Consent And Whether The Obligation To Explain A Procedure To The Patient May Be Delegated, Samuel D. Hodge, Maria Zambrano Steinhaus Feb 2019

The Ever-Changing Landscape Of Informed Consent And Whether The Obligation To Explain A Procedure To The Patient May Be Delegated, Samuel D. Hodge, Maria Zambrano Steinhaus

Arkansas Law Review

Informed consent is an integral part of the shared decision making process and requires a patient be informed of the benefits, risks and alternatives to a medical procedure. This information, which requirement has been codified into the law and practice of every healthcare provider, helps a patient decide whether to proceed with the recommended treatment plan. Informed consent has its foundation in the ethical notion of patient autonomy and fundamental human rights. After all, it is the patient’s decision to determine what may be done to his or her body and to ascertain the risks and benefits before undertaking ...


Table Of Contents, Seattle University Law Review Feb 2019

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.


Rehabilitating The Nuisance Injunction To Protect The Environment, Doug Rendleman Feb 2019

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 ...


Enhanced Patent Infringement Damages Post-Halo And The Problem With Using The Read Factors, Betul Serbest Feb 2019

Enhanced Patent Infringement Damages Post-Halo And The Problem With Using The Read Factors, Betul Serbest

Chicago-Kent Law Review

The United States Patent Act allows a patent holder to recover treble damages for “willful infringement.” The standard for willful infringement has changed over the years, with the United States Supreme Court providing the most recent explanation of what is “willful” in Halo Electronics, Inc. v. Pulse Electronics, Inc. in 2016. Courts, however, continue to use a set of factors set forth in Read Corp. v. Portec, Inc. in 1992 to aid their discretion in awarding willful infringement enhanced damages. In this article, I argue that at least two of the Read factors are inconsistent with the Supreme Court’s ...


The Discrimination Presumption, Joseph A. Seiner Feb 2019

The Discrimination Presumption, Joseph A. Seiner

Notre Dame Law Review

Employment discrimination is a fact in our society. Scientific studies continue to show that employer misconduct in the workplace is pervasive. This social science research is further supported by governmental data and litigation statistics. Even in the face of this evidence, however, it has never been more difficult to successfully bring a claim of employment discrimination. After the Supreme Court’s controversial decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, all civil litigants must sufficiently plead enough facts to give rise to a plausible claim. Empirical studies show that this plausibility test has been rigidly applied in ...


The New Oral Argument: Justices As Advocates, Tonja Jacobi, Matthew Sag Feb 2019

The New Oral Argument: Justices As Advocates, Tonja Jacobi, Matthew Sag

Notre Dame Law Review

No abstract provided.


The Demise Of § 1983 Malicious Prosecution: Separating Tort Law From The Fourth Amendment, Erin E. Mcmannon Feb 2019

The Demise Of § 1983 Malicious Prosecution: Separating Tort Law From The Fourth Amendment, Erin E. Mcmannon

Notre Dame Law Review

The common-law tort of malicious prosecution originally developed to provide a remedy for plaintiffs who were unjustly prosecuted in a criminal proceeding. Today, malicious prosecution actions can be brought to redress wrongful civil actions as well. The “central thrust” of an action for malicious prosecution is a right not to be involved in an unjustified litigation.

This Note suggests that the confusion in this area of law derives from the use of the language of malicious prosecution tort law to describe what really amounts to a Fourth Amendment seizure claim under § 1983. There is no constitutional right to be free ...


A Pentadic Analysis Of Competing Narratives In Opening Statements, Sarah J. Nelson, Luke R. Nelson Jan 2019

A Pentadic Analysis Of Competing Narratives In Opening Statements, Sarah J. Nelson, Luke R. Nelson

University of St. Thomas Law Journal

No abstract provided.


Champions For Justice & Public Interest Auction 2019, Roger Williams University School Of Law Jan 2019

Champions For Justice & Public Interest Auction 2019, Roger Williams University School Of Law

School of Law Public Interest Auction

No abstract provided.


Nevor V. Moneypenny Holdings, Llc: Availability Of Prejudgment Interest For Mixed Maritime Law And Jones Act Claims, Adam S. Bohanan Jan 2019

Nevor V. Moneypenny Holdings, Llc: Availability Of Prejudgment Interest For Mixed Maritime Law And Jones Act Claims, Adam S. Bohanan

Ocean and Coastal Law Journal

In maritime personal injury cases, courts have traditionally seen prejudgment interest as part of the compensation due to a prevailing plaintiff. The goal of ensuring the fullest compensation possible has long been recognized as a basic principle of admiralty law. However, federal appellate courts are split over whether to award prejudgment interest on a mixed claim under general maritime law and the Jones Act. This Note explores this issue in Nevor v. Moneypenny Holdings, LLC, which was the first time the question had been raised in the First Circuit. The Fifth and Sixth Circuits have held that because prejudgment interest ...


Between "The Rock" And A Hard Case: Application Of The Emoluments Clauses For A New Political Era, Douglas R. Hume Jan 2019

Between "The Rock" And A Hard Case: Application Of The Emoluments Clauses For A New Political Era, Douglas R. Hume

Pepperdine Law Review

The election of Donald Trump in 2016 rewrote some of the traditional rules for electing presidents in the United States. Does his election portend a new breed of presidential candidate, arising from the business and celebrity arena rather than traditional government service? If so, the potential for candidates with more diverse and global business interests (and the conflicts of interest that come along with them) becomes more likely. This Essay discusses the historical intent of the Emoluments Clauses and the issue of potential presidential conflicts of interest. This Essay also examines the litigation efforts filed against President Trump to force ...


Posner And Class Actions, Daniel M. Klerman Jan 2019

Posner And Class Actions, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

The hallmark of Judge Posner’s class action decisions is rigorous review to ensure that aggregate litigation serves the best interests of class members and does not unduly pressure defendants to settle. Although he championed class actions, especially as a way to provide efficient justice in cases involving numerous small claims, Posner also recognized that, because of the agency problems that pervade class action litigation, ordinary adversary procedures were not sufficient to protect class members. As a result, the judge had to act as a fiduciary for the class, especially when approving settlements and fee awards. In addition, the colossal ...


Evidence Without Rules, Bennett Capers Jan 2019

Evidence Without Rules, Bennett Capers

Notre Dame Law Review

Much of what we tell ourselves about the Rules of Evidence—that they serve as an all-seeing gatekeeper, checking evidence for relevance and trustworthiness, screening it for unfair prejudice—is simply wrong. In courtrooms every day, fact finders rely on “evidence”—for example, a style of dress, the presence of family members in the gallery, and of course race—that rarely passes as evidence in the formal sense, and thus breezes past evidentiary gatekeepers unseen and unchecked. This Article calls much needed attention to this other evidence and demonstrates that such unregulated evidence matters. Jurors use this other evidence to ...


The Architecture Of Drama: How Lawyers Can Use Screenwriting Techniques To Tell More Compelling Stories, Teresa M. Bruce Jan 2019

The Architecture Of Drama: How Lawyers Can Use Screenwriting Techniques To Tell More Compelling Stories, Teresa M. Bruce

Articles

Hollywood writers have a secret. They know how to tell a compelling story—so compelling that the top-grossing motion pictures rake in millions, and sometimes billions, of dollars. How do they do it? They use a simple formula involving three acts that propel the story forward, three "plot points" that focus on the protagonist, and two "pinch points" that focus on the adversary. The attached Article argues that lawyers should build their stories in the same way Hollywood writers do. It deconstructs the storytelling formula used in movies and translates it into an IRAC-like acronym, SCOR. Attorneys who use SCOR ...


Unfamiliar Justice: Indigent Criminal Defendants' Experiences With Civil Legal Needs, Lauren Sudeall, Ruth Richardson Jan 2019

Unfamiliar Justice: Indigent Criminal Defendants' Experiences With Civil Legal Needs, Lauren Sudeall, Ruth Richardson

Faculty Publications By Year

Our legal system - and much of the research conducted on that system - often separates people and issues into civil and criminal silos. However, those two worlds intersect and influence one another in important ways. The qualitative empirical study that forms the basis of this Article bridges the civil-criminal divide by exploring the life circumstances and events of public defender clients to determine how they experience and respond to civil legal problems.

To date, studies addressing civil legal needs more generally have not focused on those individuals enmeshed with the criminal justice system, even though that group offers a rich source ...


Books And Olive Oil: Why Antitrust Must Deal With Consolidated Corporate Power, Carl T. Bogus Jan 2019

Books And Olive Oil: Why Antitrust Must Deal With Consolidated Corporate Power, Carl T. Bogus

University of Michigan Journal of Law Reform

Following an epic battle in the marketplace between Apple and major book publishers, on one side, and Amazon, on the other side, the United States Department of Justice and thirty-three states filed an antitrust lawsuit against Apple and the publishers, alleging that they had conspired to fix the prices of ebooks. Both the district court and a divided panel of the United States Court of Appeals for the Second Circuit decided the case in the government’s favor. This Article argues that government regulators and the courts took the wrong side in the dispute and did so because of fundamental ...


Calls For Speculation: An Experimental Examination Of Juror Perceptions Of Attorney Objections, Krystia Reed Jan 2019

Calls For Speculation: An Experimental Examination Of Juror Perceptions Of Attorney Objections, Krystia Reed

Buffalo Law Review

Should attorneys object during trial? Does preserving the record outweigh the potential costs of objections, such as upsetting the jury or drawing attention to the evidence? Legal scholars have opined on the delicate balance attorneys must strike in their decisions to object, but researchers have offered little to guide attorneys making these in-the-moment decisions. I discuss results from two empirical studies that provide evidence that attorneys have less to fear from objections than legal scholars suggest. Based on these results, I provide suggestions for practicing attorneys.


Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll Jan 2019

Class Actions, Indivisibility, And Rule 23(B)(2), Maureen Carroll

Articles

The federal class-action rule contains a provision, Rule 23(b)(2), that authorizes class-wide injunctive or declaratory relief for class-wide wrongs. The procedural needs of civil rights litigation motivated the adoption of the provision in 1966, and in the intervening years, it has played an important role in managing efforts to bring about systemic change. At the same time, courts have sometimes struggled to articulate what plaintiffs must show in order to invoke Rule 23(b)(2). A few years ago, the Supreme Court weighed in, stating that the key to this type of class action is the “indivisible” nature ...