Litigation Commons^™

Finding Privacy In A Sea Of Social Media And Other E-Discovery, Allyson Haynes Stuart

Allyson Haynes Stuart

This article looks at the case law governing discovery of social media, and finds several problems. First, many courts are improperly requiring a threshold showing that relevant information exists in public portions of the user’s social media account before allowing such discovery. Second, they allow overbroad discovery, often requiring a litigant to turn over its username and password to the other party. At the same time, parties are seeking such information directly from social media sites, attempting an end-run around the relevancy requirement and increasing motion practice. The article argues that, instead, social media discovery should be treated like other …

The Calculation Of Prejudgment Interest, Michael S. Knoll, Jeffrey M. Colon

Jeffrey M. Colon

This Essay describes the proper method of calculating prejudgment interest based on sound financial principles. Using the paradigm that the claim plaintiff holds in litigation represents an involuntary loan from plaintiff to defendant and recognizing that in bankruptcy courts treat legal claims similarly to unsecured debt, we argue that prejudgment interest should be computed using the defendant's unsecured borrowing rate. Furthermore, we argue that courts should use a short-term, floating interest rate rather than a long-term rate in order to provide the proper incentive for the parties to settle. We criticize alternative bases for awarding prejudgment interest and address modifications …

I'Ll Huff And I'Ll Puff - But Then You'll Blow My Case Away: Dealing With Dismissed And Bad-Faith Defendants Under California's Anti-Slapp Statute, Jeremiah Ho

Jeremiah A. Ho

This Article will demonstrate that, despite efforts to recognize SLAPPs and to safeguard our legal process from abuses, SLAPP suits and their underlying interference with the legitimate exercise of the right to petition can often engender new ways of creeping back onto the legal stage to wreak havoc on the private citizen - that the devious, shape-shifting Big Bad Wolf of First Amendment rights can return to reprise its role as the subversive villain and to trot unsuspecting litigants out to slaughter. After an introduction into the general world of SLAPPs and the specific history behind California's section 425.16, this …

Student, Esquire?: The Practice Of Law In The Collaborative Classroom, Nantiya Ruan

Nantiya Ruan

Law faculty and non-profit lawyers are working together in a variety of partnerships to offer students exposure to “real life” clients in the first year of law school, as well as in advanced courses in substantive areas. Teachers engaged in client-centered advocacy through experiential frameworks have broken out of their isolated silos in the law school (e.g., legal writing, clinical, externship, and doctrinal) and begun to work together. To help students develop a sense of professional identity, cultivate professional values, and tap into key intrinsic motivations for lawyering, such as serving the public good, collaborative classrooms have an important role …

When Courts Determine Fees In A System With A Loser Pays Norm: Fee Award Denials To Winning Plaintiffs And Defendants, Theodore Eisenberg, Talia Fisher, Issi Rosen-Zvi

Cornell Law Faculty Publications

Under the English rule, the loser pays litigation costs whereas under the American rule, each party pays its own costs. Israel instead vests in its judges full discretion to assess fees and costs as the circumstances may require. Both the English and the American rules have been the subjects of scholarly criticism. Because little empirical information exists about how either rule functions in practice, an empirical study of judicial litigation cost award practices should be of general interest. This Article presents such a study in the context of Israel’s legal system. We report evidence that Israeli judges apply their discretion …

Book Review: The Three And A Half Minute Transaction: What Sticky Boilerplate Reveals About Contract Law And Practice, Andrea J. Boyack

Andrea J Boyack

This review situates Gulati & Scott’s findings with respect to sovereign debt instruments and the contracting process in the context of a legal profession on the brink of change. Gulati and Scott’s book addresses the inexplicable failure of lawyers to respond to a sovereign debt litigation outcome by clarifying a boilerplate provision after an adverse judicial interpretation. Their fascinating study of boilerplate in sophisticated transactional legal practice is timely and compelling both in terms of the specific story it tells, namely the persistence of the pari passu clause in sovereign debt instruments, as well as its broader implications: Structural flaws …

Closing The Door On The Public Policy Exception To At- Will Employment: How The Washington State Supreme Court Erroneously Foreclosed Wrongful Discharge Claims For Whistleblowers In Cudney V. Alsco, Inc., Laura A. Turczanski

Seattle University Law Review

In 2008, Matthew Cudney was terminated from his employment with ALSCO, Inc. a few weeks after reporting to his supervisor and human resources manager that he observed the branch general manager appearing intoxicated at work and driving away in a company vehicle. Cudney brought an action for wrongful discharge in violation of public policy, claiming that he was terminated in retaliation for reporting the manager’s drinking and driving. In a 5–4 decision, the Washington Supreme Court held that Cudney’s tort claim of wrongful discharge in violation of public policy could not proceed. This Note contends that the Cudney court erred …

Statutes Of Ill Repose And Threshold Canons Of Construction: A Unified Approach To Ambiguity After San Carlos Apache Tribe V. United States, Daniel Lee

Seattle University Law Review

Historically, the San Carlos Apache Tribe depended on the Gila River to irrigate crops and sustain a population of around 14,000 tribe members. The river is also sacred to the Tribe and central to the Tribe’s culture and spirituality. Initially, the federal government had recognized the Tribe’s dependence on the Gila River by reserving, under the Winters doctrine, water rights necessary to support the San Carlos Apache Reservation. Acting as the Tribe’s trustee, the United States entered into the Globe Equity Decree (the Decree), which prevented the San Carlos Apache Tribe from claiming water rights under the Winters doctrine and …

The Gay Accent, Gender, And Title Vii Employment Discrimination, Ryan Castle

Seattle University Law Review

While race, religion, ethnicity, and sex will always remain salient social issues in our nation, sexual orientation is currently at the forefront of our national debate and will likely not abate in the foreseeable future. Federal courts, for example, struggle in differentiating sex, gender, and sexuality when adjudicating Title VII employment discrimination claims. Because Title VII does not protect employees from sexual orientation-based discrimination, plaintiffs who are or are perceived to be of a sexual minority have difficulty proving a valid sex-based discrimination claim in federal court. This difficulty arises because one cannot perceive sex, gender, and sexuality without muddling …

„Zuerst Schlichten, Dann Richten“: O Modelo Suíço De Solução De Litígios Pré-Processual É Adequado Para O Brasil?, Nelson Rodrigues Netto

Nelson Rodrigues Netto

Dieser Aufsatz analysiert die Schlichtung und die Mediation in der Schweizerische Zivilprozessordnung.

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

This year saw the United States Court of Appeals for the Eleventh Circuit set the ground rules for collateral attacks on class settlements and elaborate on the predominance requirements for class certification. The court also considered the enforceability of a, variety of arbitration provisions in light of the United States Supreme Court's decision in AT&T Mobility LLC v. Concepcion and examined standing issues common in data security breach class actions.

Trial Practice And Procedure, John O'Shea Sullivan, Ashby Kent Fox, Amanda E. Wilson

Mercer Law Review

The 2012 survey period yielded several noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of arbitration, statutory interpretation, subject matter jurisdiction, and civil procedure.

The Fixable Flaws Of America's Civil Justice System, James Maxeiner

All Faculty Scholarship

No abstract provided.

National Juries For National Cases: Preserving Citizen Participation In Large-Scale Litigation, Laura G. Dooley

Laura Dooley

Procedural evolution in complex litigation seems to have left the civil jury behind. Reliance on aggregating devices, such as multidistrict litigation and class actions, as well as settlement pressure created by “bellwether” cases, has resulted in cases of national scope being tried by local juries. Local juries thus have the potential to impose their values on the rest of the country. This trend motivates parties to forum-shop, and some commentators suggest eliminating jury trials in complex cases altogether. Yet the jury is at the heart of our uniquely American understanding of civil justice, and the Seventh Amendment mandates its use …

Procedures For Challenging Arbitrators: Lessons For And From Taiwan, Winnie Ma

Winnie Ma

The parties to arbitration may challenge their arbitrators for genuine reasons, such as lack of impartiality, independence or competence. However, the parties may also misuse or abuse the challenge procedures as dilatory (and even as guerrilla) tactics. Ideally, the procedures for challenging arbitrators should uphold arbitral integrity and legitimacy without unduly compromising arbitral expediency and efficiency. This article explores two controversies concerning the arbitrator challenge procedures. First, who should decide on the challenge - the arbitral tribunal including or excluding the challenged arbitrators, or a separate and neutral entity such as an arbitral institution? Second, should the arbitral proceedings continue …

The Gross Confusion Deep In The Heart Of Univ. Of Texas S.W. Med. Center V. Nassar, Brian S. Clarke

Brian S. Clarke

This essay addresses a fundamental issue underlying the Supreme Court’s consideration of Univ. of Texas S.W. Med. Center v. Nassar, namely the parameters of the factual causation standard applicable in disparate treatment cases. This essay also addresses a previously unrecognized area of agreement between the plurality and dissent in Price Waterhouse v. Hopkins that can resolve the factual causation issue underlying Nassar.

The Court’s most recent pronouncement on this issue, in Gross v. FBL Financial Services, has led to confusion as defendants and courts have interpreted Gross to require sole factual causation for the plaintiff to prevail. Yet, sole causation …

Walking The Class Action Maze: Toward A More Functional Rule 23, Robert G. Bone

University of Michigan Journal of Law Reform

Over roughly the past fifteen years, the Supreme Court and lower federal courts have limited access to class actions. Many of the more restrictive decisions-such as Amchem Products, Inc. v. Windsor, Ortiz v. Fibreboard Corp., and Wal- Mart Stores, Inc. v. Dukes-are based on interpretations of Rule 23 and thus fall within the power of the Advisory Committee and rulemaking process to modify. This Article proposes revisions to Rule 23 designed to deal with some of these decisions and to make the class action a more pragmatic and functional device. It focuses on two areas: (1) the constraints imposed by …

The Future Of Classwide Punitive Damages, Catherine M. Sharkey

University of Michigan Journal of Law Reform

Conventional wisdom holds that the punitive damages class action is susceptiblenot only to doctrinal restraints imposed on class actions but also to constitutionaldue process limitations placed on punitive damages. Thus, it would seem that theprospects for punitive damages classes are even grimmer than for class actionsgenerally.This conventional picture misunderstands the role of punitive damages and, inparticular, the relationship between class actions and punitive damages. It eitherignores or underestimates the distinctly societal element of punitive damages, whichmakes them especially conducive to aggregate treatment. Furthermore, punitivedamages classes offer a solution to the constitutional due process problem of juriesawarding "classwide" damages in a …

The Future Of Securities Class Actions Against Foreign Companies: China And Comity Concerns, Dana M. Muir, Junhai Liu, Haiyan Xu

University of Michigan Journal of Law Reform

In Morrison v. National Australia Bank Ltd., the U.S. Supreme Court limited the application of U.S. securities fraud law in transnational situations. The Supreme Court noted that its decision was influenced by international comity considerations. In this Article, we evaluate the availability of class actions in China in cases involving alleged securities fraud. Because we find that the availability of those actions is too limited to fully protect U.S. shareholders, we argue that U.S. investors should be permitted to bring securities fraud class actions against non-U.S. companies whose securities are traded on a U.S. exchange regardless of where those investors …

Changed Circumstances: The Federal Rules Of Civil Procedure And The Future Of Institutional Reform Litigation After Horne V. Flores, Catherine Y. Kim

Faculty Scholarship

No abstract provided.