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Articles 1 - 26 of 26
Full-Text Articles in Litigation
Unintended Consequences: The New Test For Interlocutory Mandatory Injunctions, Jeff Berryman
Unintended Consequences: The New Test For Interlocutory Mandatory Injunctions, Jeff Berryman
Brooklyn Law Review
Interlocutory mandatory injunctions can be an important remedy during the pendency of a trial. With its decision in R. v. Canadian Broadcasting Corp, the Supreme Court of Canada revised its test for an interlocutory mandatory injunction, holding that it should require a higher threshold and be therefore harder to obtain than an interlocutory prohibitive injunction. This higher threshold requires that the applicant demonstrate a strong prima facie case that it will succeed at trial based on law and evidence. This change adds uncertainty to the process, ultimately complicating and adding costs to litigation.
Nationwide Injunctions And The Administrative State, Russell L. Weaver
Nationwide Injunctions And The Administrative State, Russell L. Weaver
Brooklyn Law Review
Where an administrative regulation is deemed by a court to be illegal, unconstitutional, or otherwise invalid, courts sometimes issue nationwide injunctions. In other words, instead of holding that the regulation cannot be applied to the individuals before the court, the court prohibits the agency from applying the regulation anywhere in the country, including to others not before the court. This article explores the debate surrounding the appropriateness of nationwide injunctions. While at first glance such injunctions may seem to make sense, they can have serious consequences, including risk of abuse and forum shopping, amplification of erroneous decisions, and the negative …
Nonparty Litigation Holds: Clear To Implement. Complex To Lift., Alexis Bianco-Burrill
Nonparty Litigation Holds: Clear To Implement. Complex To Lift., Alexis Bianco-Burrill
Brooklyn Law Review
Legal holds have long been used by parties, and nonparties alike, as a fundamental tool to preserve information that could be needed in litigation. There are a breadth of statutes, case law, and scholarly work clarifying when a party has the duty to preserve documents and therefore issues legal holds under federal law, as well as when nonparties share this same duty. Although the question of when to issue a legal hold has a clear answer, the problem of when a nonparty can lift a litigation hold is much more complex. Often, nonparties who have been requested to preserve documents …
Summary Eviction Proceedings As A Debt Collection Tool: How Landlords Use Serial Eviction Filings To Collect Rent, Grace Vetromile
Summary Eviction Proceedings As A Debt Collection Tool: How Landlords Use Serial Eviction Filings To Collect Rent, Grace Vetromile
Brooklyn Law Review
This note explores how landlords use housing court as a debt collection tool, impacting the rights of tenants and their ability to fairly adjudicate claims in summary eviction proceedings. Disparities in the number of evictions that are filed, as compared to evictions that are ultimately executed, indicate that landlords do not always use eviction proceedings to kick out a tenant, but rather as a method of debt collection. Using these proceedings in this manner affects a tenant’s ability to defend against eviction, even when the tenant has meritorious claims that their landlord did not provide a habitable apartment. This note …
Dogma, Discrimination, And Doctrinal Disarray: A New Test To Define Harm Under Title Vii, Zach Islam
Dogma, Discrimination, And Doctrinal Disarray: A New Test To Define Harm Under Title Vii, Zach Islam
Brooklyn Law Review
Historically, federal courts have used the “adverse employment action” test in Title VII disparate treatment, disparate impact, and retaliation cases to determine whether a plaintiff has suffered adequate harm. This note argues that this approach is fundamentally flawed. At the outset, the test is a judicial power grab with no support in the statutory language. What is more, it fails to uphold the plain policy purposes for Title VII by largely ignoring evidence of discriminatory acts in the workplace that Congress sought to prevent in passing the statute. Consequently, Title VII plaintiffs get the short end of the stick with …
A New Private Law Of Policing, Cristina Carmody Tilley
A New Private Law Of Policing, Cristina Carmody Tilley
Brooklyn Law Review
American law and American life are asymmetrical. Law divides neatly in two: public and private. But life is lived in three distinct spaces: pure public, pure private, and hybrid middle spaces that are neither state nor home. Which body of law governs the shops, gyms, and workplaces that are formally accessible to all, but functionally hostile to Black, female, poor, and other marginalized Americans? From the liberal midcentury onward, social justice advocates have treated these spaces as fundamentally public and fully remediable via public law equity commands. This article takes a broader view. It urges a tort law revival in …
Full Moon Or Full Fraud? A Proposed Method For Interpreting Emojis Under Rule 10b-5, Sophie Abrams
Full Moon Or Full Fraud? A Proposed Method For Interpreting Emojis Under Rule 10b-5, Sophie Abrams
Brooklyn Law Review
In the wake of the COVID-19 pandemic, many Americans who were stuck at home turned to social media forums in search of community and investing advice. Fifteen million (and counting) of them found community in r/wallstreetbets, a group on Reddit that banded together to drive up the prices of “meme stocks.” Bed Bath and Beyond was one stock that piqued retail investors’ interest after seeing billionaire investor Ryan Cohen take a 10 percent stake and activist role in the company. However, Cohen ended up being a large disappointment to his retail investor fans, as he subsequently sold off his stake …
Plea Bargains, Prosecutorial Breach, And The Curious Right To Cure, Michael D. Cicchini
Plea Bargains, Prosecutorial Breach, And The Curious Right To Cure, Michael D. Cicchini
Brooklyn Law Review
When the prosecutor breaches a plea bargain—e.g., by recommending prison instead of the agreed-upon probation—the defendant is entitled to a remedy: either sentencing in front of a different judge or plea withdrawal. However, if defense counsel objects to the breach, the prosecutor may halfheartedly change the recommendation to probation. Most courts have held that to be an effective “cure”—even when the judge then sentences the defendant to prison, as the prosecutor originally recommended. The right to cure, which was intended for commercial sales contracts, fails miserably in the plea-bargain context. In the above example, the attempted cure is too late, …
Balancing Preservation With Growth: How Less Judicial Deference To Decisions Made By The Landmarks Preservation Commission Can Save New York City, Amy Cushman
Brooklyn Law Review
The New York City Landmarks Law of 1965, envisioning the preservation of historical treasures, empowered the New York City Landmarks Preservation Commission (LPC) with the authority to designate and regulate landmarks and historic districts. Originally established in response to public outcry over the loss of iconic architectural structures, the LPC aimed to safeguard the city's cultural, social, and architectural legacy. However, this note contends that recent LPC decisions, particularly the issuance of Certificates of Appropriateness for luxury residential construction involving partial demolition of landmarks, betray the original preservation goals. Delving into the legal recourse available under the New York Civil …
No Need For Speed: The Inherent Unreasonableness Of High-Speed Police Chases And A New Approach To Excessive Force Litigation, Hayley Bork
Brooklyn Law Review
High-speed police chases are a deadly tactic used and abused by the police to apprehend motorists who flee from traffic stops. Police departments around the country routinely escalate stops for mere traffic infractions into dangerous high-speed pursuits, resulting in death and injury to those involved. Moreover, Black Americans represent a disproportionate number of those stopped, chased, and killed by police, making high-speed chases, like many police-citizen encounters, highly racialized. However, for motorists injured by high-speed chases, maintaining a successful lawsuit against the responsible officers remains incredibly difficult under current excessive force jurisprudence. Although police department policies limiting when and why …
The Pro Se Gender Gap, Roger Michalski
The Pro Se Gender Gap, Roger Michalski
Brooklyn Law Review
This article is the first to identify, name, and empirically measure the pro se gender gap. Drawing on a massive dataset of all federal civil dockets spanning ten years, it finds a 2-to-1 gender imbalance. For every federal woman pro se litigant there are two males. This finding is robust and stable. It holds true for plaintiffs, defendants, and other parties. It is also true across most subject areas, time, length of litigation, and across states, districts, and circuits. The study excludes prisoner-rights and habeas petitions–including them would widen the gender gap even further. This gender gap reveals a troubling …
The Rules Of The Malpractice Game: Affidavit Of Merit Statutes, Erie, And The Cautionary Tale Of An Overbroad Application Of Rule 11, Deanna Arpi Youssoufian
The Rules Of The Malpractice Game: Affidavit Of Merit Statutes, Erie, And The Cautionary Tale Of An Overbroad Application Of Rule 11, Deanna Arpi Youssoufian
Brooklyn Law Review
In an effort to combat the rise in potentially frivolous lawsuits against professionals, including physicians, attorneys, and journalists, states have passed malpractice legislation requiring plaintiffs to file an affidavit of merit (AOM) attesting to the validity of their claims. However, these AOM statutes may conflict with Federal Rule of Civil Procedure 11, which provides that “a pleading need not be verified or accompanied by an affidavit” unless a rule or statute states otherwise. This is a classic Erie/choice-of-law problem for federal courts sitting in diversity, which are tasked with applying federal procedural law and state substantive law, and now must …
Protecting The Constitution While Protecting Victims: Challenges To Pro Se Cross-Examination, Katharine L. Manning
Protecting The Constitution While Protecting Victims: Challenges To Pro Se Cross-Examination, Katharine L. Manning
Brooklyn Law Review
Defendants have constitutional rights to cross-examine witnesses and to represent themselves. But when these rights are combined, they can have devastating effects on crime victims. All too often, defendants use the rights in a last-ditch effort to harass, bully, and intimidate the crime’s victims, sometimes leading to a dismissal of charges altogether, as victims withdraw their testimony to avoid personal cross-examination by the defendant. It does not have to be this way. Numerous courts have allowed standby counsel to conduct cross-examination of the victim within constitutional constraints. This article explores the limitations courts have imposed on pro se cross-examination to …
Third Time’S The Charm: Remedying The Lack Of Uniformity And Predictability In Trade Secret Law, Matthew D. Kasner
Third Time’S The Charm: Remedying The Lack Of Uniformity And Predictability In Trade Secret Law, Matthew D. Kasner
Brooklyn Law Review
The current legal framework governing trade secrets in the United States lacks the uniformity and predictability necessary to protect businesses. As a result, trade secret litigation has been on the rise over the course of the last decade. Whilst remote work becomes more ubiquitous, even beyond the COVID-19 pandemic, litigation will continue to increase as businesses are forced to entrust confidential information with remote workers. This note examines the current US trade secret scheme, exposes the current framework’s deficiencies, and suggests a “trade secret formalities model” to make for a more organized and efficient doctrine of law. More specifically, this …
Credibility In Empirical Legal Analysis, Hillel J. Bavli
Credibility In Empirical Legal Analysis, Hillel J. Bavli
Brooklyn Law Review
Empirical analysis is central in both legal scholarship and litigation, but it is not credible. Researchers can manipulate data to arrive at any conclusion they wish to obtain. A practice known as data fishing—searching for and selectively reporting methods and results that are favorable to the researcher—entirely invalidates a study’s results by giving rise to false positives and false impressions. Nevertheless, it is prevalent in law, leading to false claims, incorrect verdicts, and destructive policy. In this article, I examine the harm that data fishing in empirical legal research causes. I then build on methods in the sciences to develop …
The Debate Over Disclosure In Third-Party Litigation Finance: Balancing The Need For Transparency With Efficiency, Alec J. Manfre
The Debate Over Disclosure In Third-Party Litigation Finance: Balancing The Need For Transparency With Efficiency, Alec J. Manfre
Brooklyn Law Review
The market for third-party litigation financing (TPLF) in the United States is facing unprecedented growth and popularity. The ever-increasing complexity and cost of legal disputes, especially in the commercial context, has made third-party financing an invaluable resource for both litigants in need of capital and investors seeking to diversify their portfolios with nontraditional assets. However, as the market continues to boom, so does the risk that TPLF will be used unethically. Critics of the industry are calling on regulators at both the state and federal levels to implement comprehensive disclosure requirements for TPLF at the outset of all civil litigation …
Protecting The Social Utility Of Appraisal Arbitrage: A Case For Amending Delaware Law To Strengthen The Appraisal Remedy After Dell, Thomas J. Meriam
Protecting The Social Utility Of Appraisal Arbitrage: A Case For Amending Delaware Law To Strengthen The Appraisal Remedy After Dell, Thomas J. Meriam
Brooklyn Law Review
The landscape of M&A litigation in Delaware has undergone a substantial transformation within the last decade. Almost every transaction involving the acquisition of a publicly traded company has attracted stockholder litigation. This note considers Delaware’s attempt to strike the right balance between deterring frivolous litigation and ensuring adequate stockholder protections. In particular, this note considers the social utility of Delaware’s appraisal remedy and the practice of “appraisal arbitrage.” This note puts forth reasons as to why a healthy market of appraisal arbitrage benefits all stockholders: a meaningful threat of appraisal litigation encourages better sales practices in the market for corporate …
Temporary Restraining Orders To Enforce Intellectual Property Rights At Trade Shows: An Empirical Study, Marketa Trimble
Temporary Restraining Orders To Enforce Intellectual Property Rights At Trade Shows: An Empirical Study, Marketa Trimble
Brooklyn Law Review
Infringements of intellectual property (IP) rights by exhibitors at trade shows (also called trade fairs or exhibitions), such as infringements committed through exhibitions of or offers to sell infringing products, can be extremely damaging to IP right owners because of the wide exposure that trade shows provide for infringing IP; the promotion of the infringing IP and the contacts made by infringers at trade shows can facilitate further infringements after a trade show that can be very difficult for IP right owners to prevent. IP right owners therefore seek to obtain emergency injunctive relief to stop trade show infringements immediately—if …
Malice Maintenance Is “Runnin’ Wild”: A Demand For Disclosure Of Third-Party Litigation Funding, Anusheh Khoshsima
Malice Maintenance Is “Runnin’ Wild”: A Demand For Disclosure Of Third-Party Litigation Funding, Anusheh Khoshsima
Brooklyn Law Review
Third-party funding (TPLF) is when a nonparty, who does not have a direct stake in the litigation, funds a lawsuit. There are varying motivations that drive TPLF arrangements—including investors offering loans to receive a portion of the settlement or public interest groups sponsoring impact litigation. This note discusses a specific mode of TPLF that is motivated by a personal interest in the lawsuit rather than monetary gain, referred to as “malice maintenance.” At common law, maintenance was prohibited to prevent powerful and wealthy individuals form taking advantage of the court system. The majority of states today, however, permit at least …
Reevaluating Attorney-Client Privilege In The Age Of Hackers, Anne E. Conroy
Reevaluating Attorney-Client Privilege In The Age Of Hackers, Anne E. Conroy
Brooklyn Law Review
The news story is now familiar: hackers breach a security system and post internal, confidential information online for anyone with an Internet connection to comb through. This digital version of whistleblowing, called “hacktivism,” is attractive to the media, which has leaned on broad First Amendment protections to widely cover the confidential communications revealed by hackers. These hacks also provide attorneys with enticing opportunities to look through previously confidential files. But as ethics and evidentiary rules stand, it is not clear if an attorney may view the files, let alone use them as evidence in litigation. That companies are hacked is …
An Exception To The Derivative Rule: Allowing Mutual Fund Investors To Bring Suits Directly, Jamie D. Kurtz
An Exception To The Derivative Rule: Allowing Mutual Fund Investors To Bring Suits Directly, Jamie D. Kurtz
Brooklyn Law Review
Mutual funds differ greatly from traditional corporations in the way they are formed and operated. Despite these differences, courts apply the same rules for derivative shareholder litigation to both types of entities. While these rules make sense and were mostly created with corporations in mind, courts have generally been unwilling to consider mutual funds’ unique characteristics in determining whether to allow direct litigation from shareholders. This note explores those unique characteristics and the usual policy reasons for requiring derivative litigation. It concludes that in most cases these unique characteristics make a derivative suit nearly impossible to sustain. Further, the normal …
If We Don’T Bring Them To Court, The Terrorists Will Have Won: Reinvigorating The Anti-Terrorist Act And General Jurisdiction In A Post-Daimler Era, Stephen J. Digregoria
If We Don’T Bring Them To Court, The Terrorists Will Have Won: Reinvigorating The Anti-Terrorist Act And General Jurisdiction In A Post-Daimler Era, Stephen J. Digregoria
Brooklyn Law Review
Prior to the Supreme Court's recent general personal jurisdiction decisions in Daimler AG v. Bauman and Goodyear Dunlop Tires Operations S.A. v. Brown American terror victims, injured in terror attacks abroad, were able to bring their attackers and those who sponsor them into United States courts for relief. Specifically, groups like the Palestine Liberation Organization (the PLO) and the Palestinian Authority (the PA) had a history of being sued by American victims of terror. In the course of these suits, the PLO and the PA were regularly found subject to the personal jurisdiction of U.S. courts under a theory of …
“Hello…It’S Me. [Please Don’T Sue Me!]” Examining The Fcc’S Overbroad Calling Regulations Under The Tcpa, Marissa A. Potts
“Hello…It’S Me. [Please Don’T Sue Me!]” Examining The Fcc’S Overbroad Calling Regulations Under The Tcpa, Marissa A. Potts
Brooklyn Law Review
Americans have received unwanted telemarketing calls for decades. In response to a rapid increase in pre-recorded calls made using autodialer devices, Congress enacted the Telephone Consumer Protection Act (TCPA) in 1992. The TCPA imposes restrictions on calls made to consumers’ residences and wireless phones using autodialer devices, even if they are not telemarketing calls. Congress appointed the Federal Communications Commission (FCC) to prescribe rules and regulations to enforce the TCPA. In 2015, the FCC released an order that defined autodialer more broadly under the statute. Consequently, devices that have the potential to become autodialers in the future, even if they …
Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii
Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii
Brooklyn Law Review
On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …
Public Interest Over Private Prejudice? The Public Interest Exception To The Defense Of Laches And The Fourth Circuit's Clean Slate, Christopher A. Mull
Public Interest Over Private Prejudice? The Public Interest Exception To The Defense Of Laches And The Fourth Circuit's Clean Slate, Christopher A. Mull
Brooklyn Law Review
The trademark cancellation petitions and subsequent appeals surrounding the Washington Redskins’ allegedly disparaging trademarks lay useful groundwork in determining the applicability of the equitable defense of laches in the face of a purported greater public interest. The Lanham Act gives individuals the power to petition to cancel federally registered marks that may be disparaging to a group of individuals, while also permitting trademark holders to assert the equitable defense of laches in the event of unreasonable delay and consequential prejudice. In Pro-Football, Inc. v. Harjo, the District Court for the District of Columbia and the D.C. Circuit held that …
The New Governance And The Challenge Of Litigation Bylaws, Jill E. Fisch
The New Governance And The Challenge Of Litigation Bylaws, Jill E. Fisch
Brooklyn Law Review
Corporate governance mechanisms designed to ensure that managers act in shareholders’ interest have evolved dramatically over the past 40 years. “Old governance” mechanisms such as independent directors and performance-based executive compensation have been supplemented by innovations that give shareholders greater input into both the selection of directors and ongoing operational decisions. Issuer boards have responded with tools to limit the exercise of shareholder power both procedurally and substantively. This article terms the adoption and use of these tools, which generally take the form of structural provisions in the corporate charter or bylaws, the “new governance.”
Delaware law has largely taken …