Litigation Commons^™

Front Matter, Jtaa Editors

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Table Of Contents, Jtaa Editors

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Constitutional Law—Constitutionality Of Police Caretaking Conduct Inside The Home—Calinga V. Strom, 141 S. Ct. 1596 (2021), Angela Bartucca

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Masthead, Jtaa Editors

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

The Judicial War On Drugs: Deciding Whether To Apply The Federal Or State Definition Of Controlled Substance Offenses For Career Offender Sentencing Enhancements, Marisa Chamberland

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Civil Procedure—The Need For Effect-Based Personal Jurisdiction In Trademark Litigation—Motus, Llc V. Cardata Consultants, Llc, 23 F.4th 115 (1st Cir. 2022), Ian Mcreynolds

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Education Law—A Child Left Behind: Exploring Failures In Effective Iep Implementation—Lamar Consol. Indep. Sch. Dist. V. J.T., 577 F. Supp. 3d 599 (S.D. Tex. 2021), Katie Groves

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

The Justiciability Of Cancelled Patents, Greg Reilly

Washington and Lee Law Review

The recent expansion of the Patent Office’s power to invalidate issued patents raises a coordination problem when there is concurrent litigation, particularly where the federal courts have already upheld the patent’s validity. The Federal Circuit has concluded that Patent Office cancellation extinguishes litigation pending at any stage and requires vacating prior decisions in the case. This rule is widely criticized on doctrinal, policy, and separation of powers grounds. Yet the Federal Circuit has reached (almost) the right outcome, except for the wrong reasons. Both the Federal Circuit and its critics overlook that the Federal Circuit’s rule reflects a straightforward application …

The Litigation Landscape Of Fraternity And Sorority Hazing: Defenses, Evidence, And Damages, Gregory S. Parks, Elizabeth Grindell

Washington and Lee Law Review

In recent years, increasing public and media attention has focused on hazing, especially in collegiate fraternities and sororities. Whether it is because of the deaths, major injuries, or litigation, both criminal and civil, collegiate fraternities and sororities have received increased scrutiny. In this Article, we explore a range of tactical considerations that lawyers must consider—from defenses to evidentiary concerns. We also explore how damages are contemplated in the context of hazing litigation.

Litigation As Integration And Participation: The Role Of Lawsuits In The U.S. Environmental Justice Movement, Tomas Sebastian Forman

Senior Projects Spring 2022

What is, has been, and could be the role of litigation in the U.S. environmental justice movement? To what ends do Indigenous communities, federally-recognized tribes, and rural Black communities choose to engage with the U.S. legal system, an institution which has, over history, consistently subjugated and dispossessed them? How do these groups' particularistic relationships to natural and built environments, conceptions of justice and fairness, and understandings of what effective environmental regulation look like inform that choice? This paper draws from in-depth qualitative research to demonstrate the following things: (1) how environmental justice lawsuits differ from canonical environmental and civil rights …

The Oligarchic Courthouse: Jurisdiction, Corporate Power, And Democratic Decline, Luke Norris, Helen Hershkoff

Law Faculty Publications

Jurisdiction is foundational to the exercise of a court’s power. It is precisely for this reason that subject matter jurisdiction today has come to the center of a struggle over corporate power and the regulatory state. Corporations have sought to manipulate forum choice to wear out less-resourced parties and circumvent hearings on the merits, along the way insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of court and push them into arbitration, and failing that, to lock plaintiffs into federal court rather than state court or …

Front Matter, Jtaa Editors

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Masthead, Jtaa Editors

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Editor's Note, Kori Dean

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

America’S Extraordinary And Compelling Problem: An Assessment Of The Sentence Modification Process In The Federal District Courts And The Need To Remove The Bureau Of Prison’S Gatekeeper Role, Katherine Chenail

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Editor's Note, Allison Eddy

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Life Is What You Make It . . . Unless You Are Transgender And Incarcerated: Revising The Test For Judging An Incarcerated Transgender Individual’S Readiness For Gender Confirmation Surgery, Allison Eddy

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Constitutional Law—Strengthening Schools’ Ability To Combat Cyberbullying In Denying Students’ First Amendment Challenge—Doe V. Hopkinton Pub. Schs., 19 F.4th 493 (1st Cir. 2021), Rebecca Brownell

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Constitutional Law—First Circuit Clearly Unconvinced By Lack Of Procedural Safeguards In Proving Noncitizens’ Flight Risk—Hernandez-Lara V. Lyons, 10 F.4th 19 (1st Cir. 2021), Shannah Colbert

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Debt Collection—A Benign Language Exception Should Be Read Into The Fair Debt Collection Practices Act’S “Unfair Practices” Section—Donovan V. Firstcredit, Inc., 983 F.3d 246 (6th Cir. 2020), Shiri Pagliuso

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Constitutional Law—An Alternative Analysis To Intangible Emotional Harm Standing In The Way Of Constitutional Standing—Vazzano V. Receivable Mgmt. Servs., Llc, No. 3:21-Cv-0825-D, 2022 U.S. Dist. Lexis 144258 (N.D. Tex. Aug. 12 2022), Emily Larovere

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Requiring The Executive To Turn Square Corners: The Supreme Court Increases Agency Accountability In Department Of Homeland Security V. Regents Of The University Of California, Claudia J. Bernstein

Dickinson Law Review (2017-Present)

Administrative agencies frequently promulgate rules that have dramatic effects on peoples’ lives. Deferred Action for Childhood Arrivals (“DACA”) is one such example. DACA grants certain unlawful immigrants a temporary reprieve from deportation, as well as ancillary benefits such as work permits. In 2017, the Department of Homeland Security (“DHS”) sought to rescind DACA on the basis that the program violates the Immigration and Nationality Act.

This Comment analyzes the recent Supreme Court decision about DACA’s recission in Department of Homeland Security v. Regents of University of California. In rejecting DHS’s attempt to rescind DACA, the Court strengthened agency accountability …

The Stoic Litigator, Leonard M. Niehoff

Articles

A variety of events over the past several years have renewed my conversations with some reliable old friends. And I mean very old. I refer here to the Stoic philosophers, most of whom did their thinking and writing around the turn of the Common Era.

The Stoics took their name from the central square of Athens, the Stoa Poikile, where Zeno is generally credited with founding the school in the early part of the third century BCE. Various philosophers over the next five centuries identified themselves as Stoics, so the label takes in lots of personalities and lots of territory. …

Pandemic Rules: Covid-19 And The Prison Litigation Reform Act’S Exhaustion Requirement, Betsy Ginsberg, Margo Schlanger

Faculty Articles

For over twenty-five years, the Prison Litigation Reform Act (PLRA) has undermined the constitutional rights of incarcerated people. For people behind bars and their allies, the PLRA makes civil rights cases harder to bring and harder to win—regardless of merit. We have seen the result in the wave of litigation relating to the COVID-19 pandemic. Beginning March 2020, incarcerated people facing a high risk of infection because of their incarceration, and a high risk of harm because of their medical status, began to bring lawsuits seeking changes to the policies and practices augmenting the danger to them. Time and again, …

Ethical Duties Of Class Counsel Also Representing Class Representatives, Nancy J. Moore

Faculty Scholarship

In their excellent article entitled May Class Counsel Also Represent Lead Plaintiffs?,¹ Professors Bruce Green and Andrew Kent explore a particular aspect of two broader questions I have also addressed: (1) who should regulate class action lawyers;² and (2) who will regulate class action lawyers?³ I, too, focused on lawyers' conflicts of interest; however, Professors Green and Kent focus even more specifically on conflicts arising from class counsel's simultaneous representation of both the class and individual clients who are serving or will serve as class representatives. Their concern is with three particular scenarios in which the class …

Balancing Clashing Scholars’ Academic Freedoms, Sharona Aharoni-Goldenberg, Gerry Leisman

Touro Law Review

The paper analyzes the scope of scholars’ academic freedom and maintains that it is composed of two pillars. First, inclusion, which is subject to capacity, equality, and the provision of a pro-educational academic environment. Second, academic expression, which refers to teaching and research, freedom of opinion, political participation outside academia and freedom to receive academic materials. Scholars’ academic freedom is limited by professional standards and is subject to the respect of the rights of fellow scholars.

The paper argues that scholars’ academic freedom is not confined to a scholar-state relation but is also relevant to scholar-scholar relations. Hence, scholars’ academic …

Developments In The Laws Affecting Electronic Payments And Financial Services, Sarah Jane Hughes, Stephen T. Middlebrook, Tom Kierner

Articles by Maurer Faculty

The past year proved to be a busy period for the regulation of electronic payments and financial services. In this year’s survey, we discuss rulemakings, enforcement actions, and other litigation that has significantly impacted the law governing payments and financial services. Part II addresses the ongoing fight between federal and state authorities over which should properly regulate Fin- Tech entities and describes some new steps the Office of the Comptroller of the Currency (“OCC”) has taken to assert its authority in this area. Part III details an enforcement action that California regulators took against a FinTech company they determined had …

The Finality Of Unmodified Appellate Commissioner Rulings In Washington State, Aurora R. Bearse

Washington Law Review Online

In Washington appellate courts, unelected court commissioners handle most of the motion practice. Some motions are minor and mostly procedural, but other motions touch on the scope of the appeal or its merits. Because commissioners have the power to shape the course of an appeal, the Washington Rules of Appellate Procedure allow parties to internally appeal any commissioner decision to a panel of elected judges, via what is called a “motion to modify” under RAP 17.7. If a panel modifies a commissioner’s ruling, the panel’s decision becomes the final decision of the court on that issue. Similarly, multiple opinions recognize …

To Participate And Elect: Section 2 Of The Voting Rights Act At 40, Ellen D. Katz, Brian Remlinger, Andrew Dziedzic, Brooke Simone, Jordan Schuler

Other Publications

This paper provides an overview of cases decided under Section 2 of the Voting Rights Act between September 1, 1982 and December 31, 2021. It updates our 2006 study documenting Section 2 litigation through 2005. Of note is the substantial decline in the number of Section 2 cases decided and diminished success for the plaintiffs who bring them. While recent litigation (including Brnovich and Merrill v. Milligan) suggests that Section 2 is likely to occupy, at best, a diminished role in future electoral disputes, this paper shows that Section 2’s reach had already declined significantly prior to recent disputes. …

Reflections On Nomos: Paideic Communities And Same Sex Weddings, Marie A. Failinger

Touro Law Review

Robert Cover’s Nomos and Narrative is an instructive tale for the constitutional battle over whether religious wedding vendors must be required to serve same-sex couples. He helps us see how contending communities’ deep narratives of martyrdom and obedience to the values of their paideic communities can be silenced by the imperial community’s insistence on choosing one community’s story over another community’s in adjudication. The wedding vendor cases call for an alternative to jurispathic violence, for a constitutionally redemptive response that prizes a nomos of inclusion and respect for difference.