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Keeping Up With Your Sister Court: Unpublished Memorandums, No-Citation Rules, And The Superior Court Of Pennsylvania, Logan Hetherington 2018 Dickinson School of Law of the Pennsylvania State University

Keeping Up With Your Sister Court: Unpublished Memorandums, No-Citation Rules, And The Superior Court Of Pennsylvania, Logan Hetherington

Dickinson Law Review

As Pennsylvania’s intermediate appellate court of general jurisdiction, the Pennsylvania Superior Court decides thousands of cases each year. The vast majority of those cases are disposed of via unpublished memorandums. These unpublished memorandums are designated as non-precedential and may not be cited by parties before the Superior Court. As a result, litigants and their counsel may not even persuasively cite an unpublished memorandum in briefs or other papers submitted to the Court. Thus, if counsel finds an unpublished memorandum deciding the identical issue of the case at hand and counsel is before the Superior Court judge who authored that ...


Personal Jurisdiction And Aliens, Scott Dodson, William Dodge 2017 University of California Hastings College of Law

Personal Jurisdiction And Aliens, Scott Dodson, William Dodge

Scott Dodson

The increasing prevalence of noncitizens in U.S. civil litigation raises a fundamental question for the doctrine of personal jurisdiction: how should the alienage status of a defendant affect personal jurisdiction? This fundamental question comes at a time of increasing Supreme Court focus on personal jurisdiction, in cases like Bristol-Myers Squibb v. Superior Court, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. We aim to answer that question by offering a theory of alienage personal jurisdiction. Under this theory, alienage status broadens the geographic range for minimum contacts from a single state to the whole nation. This ...


Personal Jurisdiction And Aggregation, Scott Dodson 2017 University of California Hastings College of Law

Personal Jurisdiction And Aggregation, Scott Dodson

Scott Dodson

Aggregation—the ability to join parties or claims in a federal civil lawsuit—has usually been governed by subject-matter jurisdiction, claim and issue preclusion, and the joinder rules. These doctrines have tended to favor aggregation because of its efficiency, consistency, and predictability. Yet aggregation is suddenly under attack from a new threat, one that has little to do with aggregation directly: personal jurisdiction. In this Article, I chronicle how a recent restrictive turn to personal jurisdiction—especially though modern cases narrowing general jurisdiction and last Term’s blockbuster case Bristol-Myers Squibb—threatens the salutary benefits of aggregation across a number ...


Jurisdiction In The Trump Era, Scott Dodson 2017 University of California Hastings College of Law

Jurisdiction In The Trump Era, Scott Dodson

Scott Dodson

The next four years—and perhaps beyond—are likely to solidify two recent trends in jurisdictional doctrine favoring defense interests. First, the narrowing of personal jurisdiction has given defendants more opportunities to secure home-state advantage and, as an ancillary matter, hinder plaintiff-friendly aggregation. This narrowing is likely to continue in light of President Trump’s judicial appointments and the disinclination of Congress and rulemakers to expand personal jurisdiction in federal court. Second, recent expansions of diversity jurisdiction allow defendants to invoke favorable federal procedures and interstate venue transfer. Despite longstanding calls to reduce the scope of diversity jurisdiction, Congress is ...


Estate Of Adams V. Fallini, 132 Nev. Adv. Op. 81 (December 29, 2016), Krystina Viernes 2017 Nevada Law Journal

Estate Of Adams V. Fallini, 132 Nev. Adv. Op. 81 (December 29, 2016), Krystina Viernes

Nevada Supreme Court Summaries

The Court considered whether a party may appeal a district court’s order granting an NRCP 60(b) motion to set aside a final judgment for fraud upon the court. The Court held the district court’s order interlocutory and may not be appealed until a final judgment is entered.The Court held that the district court was not barred from considering the NRCP 60(b) motion and the district court did not abuse its discretion in granting relief based on fraud upon the court.


Franchise Tax Board Of California V. Hyatt, 133 Nev. Adv. Op. 102 (Dec. 26, 2017), Rebecca L. Crooker 2017 University of Nevada, Las Vegas -- William S. Boyd School of Law

Franchise Tax Board Of California V. Hyatt, 133 Nev. Adv. Op. 102 (Dec. 26, 2017), Rebecca L. Crooker

Nevada Supreme Court Summaries

The Court determined that discretionary-function immunity does not apply to intentional tort and bad faith claims. Under comity principles, the Franchise Tax Board was entitled to the $50,000 statutory cap that would extend to Nevada businesses under NRS 41.035(1). The Court additionally recognized false light invasion of privacy as a tort cause of action distinct from other privacy torts, and adopted the Restatement’s sliding-scale approach in determining the amount of evidence necessary to establish a claim for intentional infliction of emotional distress.


Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger 2017 Brooklyn Law School

Towards A Jurisprudence Of Public Law Bankruptcy Judging, Edward J. Janger

Brooklyn Journal of Corporate, Financial & Commercial Law

In this essay Professor Janger considers the role of bankruptcy judges in Chapter 9 cases in light of the scholarly literature on public law judging. He explores the extent to which bankruptcy judges engaged in the fiscal restructuring of a municipality use tools, and face constraints, similar to those utilized by federal district court judges in structural reform cases, where constitutional norms are at issue.


United States V. Osage Wind, Llc, Summer Carmack 2017 Alexander Blewett III School of Law at the University of Montana

United States V. Osage Wind, Llc, Summer Carmack

Public Land & Resources Law Review

The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian ...


Scientific Evidence And Forensic Science Since Daubert: Maine Decides To Sit Out On The Dance, Thomas L. Bohan 2017 University of Maine School of Law

Scientific Evidence And Forensic Science Since Daubert: Maine Decides To Sit Out On The Dance, Thomas L. Bohan

Maine Law Review

In 1993, the Supreme Court of the United States stated that with the federal adoption of statutory rules of evidence in 1975, the common law rule for determining admissibility of scientific testimony was superseded, and that thenceforth admissibility of scientific testimony was to be determined solely by Federal Rule of Evidence 702 (Rule 702). The Frye standard had been adopted in one form or another by most of the federal circuits and by many of the state courts during the 70 years preceding Daubert. Referred to as the “general acceptance” standard, the Frye standard--although adopted in a variety of forms--had ...


One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl 2017 William & Mary Law School

One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one ...


Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr. 2017 University of Maine School of Law

Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr.

Maine Law Review

With these words of prophecy the Commission to Study the Future of Maine's Courts launched its discussion of alternative dispute resolution (ADR). Although conceding that “the adversary process ... has served the people of the state well” and acknowledging that “the state must continue to provide a forum for forceful advocacy that produces a definite and binding judicial decision” the Commission asked the Maine judicial and legislative branches to embrace ADR. For the last dozen years, the Author has been the Supreme Judicial Court's (SJC's) liaison to its ADR Planning and Implementation Committee and Chair of the Court ...


Civil Procedure's Five Big Ideas, Kevin M. Clermont 2017 Cornell Law School

Civil Procedure's Five Big Ideas, Kevin M. Clermont

Kevin M. Clermont

Civil procedure, more than any other of the basic law-school courses, conveys to students an understanding of the whole legal system. I propose that this purpose should become, more openly, the organizing theme of the course. The focus should remain, of course, on the mechanics of the judicial branch. What I champion is giving some conscious attention, albeit mainly in the background and at an introductory level, to the big ideas of the constitutional structure within which the law formulates civil procedure. Such attention would unify the doctrinal study, while enriching it for the students and revealing its true importance.


Our Equity: Federalism And Chancery, Jeffrey Steven Gordon 2017 University of Miami Law School

Our Equity: Federalism And Chancery, Jeffrey Steven Gordon

University of Miami Law Review

Federal courts sitting in diversity cannot agree on whether state or federal law governs the award of a preliminary injunction. The conditions for the exercise of a federal diversity court’s extraordinary remedial power are anybody’s guess. The immediate cause of the confusion is Justice Frankfurter’s cryptic opinion in Guaranty Trust Co. v. York, which aggressively enforced Erie and, at the same time, preserved the so-called “equitable remedial rights” doctrine. There are, however, much broader and deeper causes that explain why the equitable remedial rights doctrine is almost incomprehensible today.

This Article argues that the early history of ...


Insuring Bias: Does Evidence Of Common Insurance Demonstrate Relevant Expert Witness Bias In Medical Negligence Litigation?, 55 Duq. L. Rev. 339 (2017), Marc Ginsberg 2017 John Marshall Law School

Insuring Bias: Does Evidence Of Common Insurance Demonstrate Relevant Expert Witness Bias In Medical Negligence Litigation?, 55 Duq. L. Rev. 339 (2017), Marc Ginsberg

Marc D. Ginsberg

No abstract provided.


Protecting The Public Benefit: Crafting Precedent For Citizen Enforcement Of Conservation Easements, Sean P. Ociepka 2017 University of Maine School of Law

Protecting The Public Benefit: Crafting Precedent For Citizen Enforcement Of Conservation Easements, Sean P. Ociepka

Maine Law Review

In fiscal year 2004, Wal-Mart added 139 new discount stores, supercenters, and “neighborhood markets” to its already significant chain of stores across the United States. Wal-Mart developers submit their proposals to governing town bodies all over the country with the promise that the $20 million construction of a 200,000 square foot store will create 500 new jobs for the local economy, will have a payroll of over $12 million, will increase the tax base of the area, and will provide convenient, affordable shopping for consumers. For these reasons, the big box stores are a hard offer for town planners ...


Lost Esi Under The Federal Rules Of Civil Procedure, Jeffrey A. Parness 2017 Northern Illinois University College of Law

Lost Esi Under The Federal Rules Of Civil Procedure, Jeffrey A. Parness

Science and Technology Law Review

Current Issue

Volume 20, Number 1 – The Privacy, Probability, and Political Pitfalls of Universal DNA Collection

Meghan J. Ryan 20 SMU Sci. & Tech. L. Rev. 3 Watson and Crick’s discovery of the structure of DNA (deoxyribonucleic acid) in 1953 launched a truth-finding mission not only in science but also in the law. Just thirty years later–after the science had evolved–DNA evidence was being introduced in criminal courts. Today, DNA evidence is heavily relied on in criminal and related cases. It is routinely introduced in murder and rape cases as evidence of guilt; DNA databases have grown as even arrestees have been required to surrender DNA samples; and this evidence has been used to exonerate hundreds of convicted individuals. DNA evidence is generally revered as the “gold standard” in criminal cases because, unlike eyewitness testimony, bite-mark evidence, hair analysis, and the like, it is considered nearly infallible. This potency of DNA evidence has led to suggestions that we, as a nation, should magnify the power of DNA by increasing the size ...


Why Civil And Criminal Procedure Are So Different: A Forgotten History, Ion Meyn 2017 University of Wisconsin Law School

Why Civil And Criminal Procedure Are So Different: A Forgotten History, Ion Meyn

Fordham Law Review

Much has been written about the origins of civil procedure. Yet little is known about the origins of criminal procedure, even though it governs how millions of cases in federal and state courts are litigated each year. This Article’s examination of criminal procedure’s origin story questions the prevailing notion that civil and criminal procedure require different treatment. The Article’s starting point is the first draft of the Federal Rules of Criminal Procedure—confidential in 1941 and since forgotten. The draft reveals that reformers of criminal procedure turned to the new rules of civil procedure for guidance. The ...


Deference To The Plaintiff In Forum Non Conveniens Cases, Brett Workman 2017 Fordham University School of Law

Deference To The Plaintiff In Forum Non Conveniens Cases, Brett Workman

Fordham Law Review

This Note analyzes several cases in an effort to understand why, based on each case’s unique circumstances, the plaintiff’s choice of forum received a particular level of deference. This Note then produces a synthesized list of factors that alter the level of deference a plaintiff’s choice of forum receives under forum non conveniens analysis. An understanding of these factors provides increased predictability as to when a plaintiff’s choice of forum might receive heightened deference under this common law doctrine.


The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro 2017 University of California - Berkeley

The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

In FTC v. Actavis, Inc., the Supreme Court considered "reverse payment" settlements of patent infringement litigation. In such a settlement, a patentee pays the alleged infringer to settle, and the alleged infringer agrees not to enter the market for a period of time. The Court held that a reverse payment settlement violates antitrust law if the patentee is paying to avoid competition. The core insight of Actavis is the Actavis Inference: a large and otherwise unexplained payment, combined with delayed entry, supports a reasonable inference of harm to consumers from lessened competition.This paper is an effort to assist courts ...


Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro 2017 University of California - Berkeley

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply ...


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