Close Enough To Stand?: Reconsidering The Fair Debt Collection Practices Act's Relationship With The Right To Privacy, 2023 Fordham University School of Law
Close Enough To Stand?: Reconsidering The Fair Debt Collection Practices Act's Relationship With The Right To Privacy, Ryan Karerat
Fordham Law Review
With the passage of the Fair Debt Collection Practices Act (FDCPA) in 1977, Congress created a private right of action through which consumers could sue debt collectors for overzealous and improper conduct traceable to their debt collection efforts. FDCPA violations can abridge a consumer’s rights under the statute without producing tangible economic or physical injury. As a result, many plaintiffs bringing claims under the FDCPA plead different theories of intangible harm to establish the required injury in fact conferring Article III standing to file suit in federal court. To establish that they have suffered an injury in fact, a plaintiff …
Manufacturing Uncertainty In Constitutional Law, 2023 Northeastern University
Manufacturing Uncertainty In Constitutional Law, Ari Ezra Waldman
Fordham Law Review
Civil rights litigation is awash in misinformation. Litigants have argued that abortion causes cancer, that gender-affirming hormone therapy for adolescents is irreversible, and that in-person voter fraud is a massive problem. But none of that is true. The conventional scholarly account about law and misinformation, disinformation, and dubious claims of fact focuses on the power of legislatures and amici to engage in perfunctory fact-finding and to rely on “alternative facts” or outright falsehoods to justify laws that harm and restrict the rights of marginalized populations. At the same time, the literature suggests that judges and the law are inundated with …
Law's Credibility Problem, 2023 University of Connecticut School of Law
Law's Credibility Problem, Julia Simon-Kerr
Washington Law Review
Credibility determinations often seal people’s fates. They can determine outcomes at trial; they condition the provision of benefits, like social security; and they play an increasingly dispositive role in immigration proceedings. Yet there is no stable definition of credibility in the law. Courts and agencies diverge at the most basic definitional level in their use of the category.
Consider a real-world example. An immigration judge denies asylum despite the applicant’s plausible and unrefuted account of persecution in their country of origin. The applicant appeals, pointing to the fact that Congress enacted a “rebuttable presumption of credibility” for asylum-seekers “on appeal.” …
Catalyst Pharms., Inc. V. Becerra: When The Food And Drug Administration Repeatedly Ignores The Plain Language Of The Orphan Drug Act (Oda), 2023 Cleveland State University
Catalyst Pharms., Inc. V. Becerra: When The Food And Drug Administration Repeatedly Ignores The Plain Language Of The Orphan Drug Act (Oda), Yifan Wang
Journal of Law and Health
In Catalyst Pharms., Inc. v. Becerra, the court held that the scope of orphan drug exclusivity applies to the disease or conditions for which the drug is designated because the plain language of the 21 U.S.C. § 360cc(a) is clear. The decision is in contrast to the practice of the FDA to narrowly construe the exclusivity to apply only to the uses or indications for which the drug is approved. The court correctly reached its holding using a plain language approach and rejected the FDA’s argument based on legislative history and purpose. The FDA has repeatedly ignored courts interpretations …
Armor Or Withdraw? Likely Litigation And Potential Adjudication Of Shoreland Conflicts Along Michigan's Shifting Great Lake Coasts, 2023 University of Michigan
Armor Or Withdraw? Likely Litigation And Potential Adjudication Of Shoreland Conflicts Along Michigan's Shifting Great Lake Coasts, Richard K. Norton, Guy A. Meadows, Oday Salim, Matthew Piggins, Phillip Washburn, Lauren Ashley Week
Michigan Journal of Environmental & Administrative Law
Michigan enjoys along its inland seas, the Laurentian Great Lakes, one of the longest coastlines in the U.S. Much of that shoreline is privately owned. Because of a confluence of development pressures and irrepressible physical dynamics, growing numbers of Great Lakes shoreland properties, built on shifting sandy shores, are at heightened risk of loss from coastal storm surge, inundation, erosion, and shoreline recession. In response, property owners are installing extensive hardened shoreline armoring structures like seawalls and revetments to arrest those erosional processes. Those structures, however, will substantially impair, if not ultimately destroy, the state’s natural coastal beaches and other …
Curiosities Of Standing In Trade Secret Law, 2023 Northwestern Pritzker School of Law
Curiosities Of Standing In Trade Secret Law, Charles T. Graves
Northwestern Journal of Technology and Intellectual Property
Standing under the Uniform Trade Secrets Act – the right to pursue a misappropriation claim – is a vexing question when compared to patent, copyright, and trademark law. Instead of requiring ownership or license rights as a condition to sue, courts often find that mere possession of an asserted trade secret suffices for standing, even when the provenance of the information is murky. In some cases, courts even allow trade secret plaintiffs to claim intellectual property rights in the preferences and desires expressed to them by their customers in lawsuits designed to stop former employees from doing business with those …
The Securities Law Disclosure Conundrum For Publicly Traded Litigation Finance Companies, 2023 Georgia State University
The Securities Law Disclosure Conundrum For Publicly Traded Litigation Finance Companies, Robert F. Weber
University of Michigan Journal of Law Reform
The Article examines a peculiar legal dilemma—implicating securities law, legal ethics, and evidence law—that arises when litigation finance companies (LFCs) become public companies. LFCs provide funding to litigants and law firms for prosecuting lawsuits in exchange for a share of the lawsuit recoveries. In recent years, LFCs have significantly altered the landscape of the civil justice system in common law jurisdictions. But their assets, which are just rights to proceeds from lawsuits, are notoriously opaque— who really can predict what a jury will do when it comes to liability and damages? When LFCs go public, this opacity frustrates public investors’ …
The Short Unhappy Life Of The Negotiation Class, 2023 University of Texas School of Law
The Short Unhappy Life Of The Negotiation Class, Linda S. Mullenix
University of Michigan Journal of Law Reform
On September 11, 2019, Judge Dan Aaron Polster of the United States District Court for the Northern District of Ohio, Eastern Division, approved a novel negotiation class certification in the massive Opiate multidistrict litigation (MDL). Merely one year later on September 24, 2020, the Sixth Circuit reversed Judge Polster’s certification order. While the Opiate MDL has garnered substantial media and academic attention, less consideration has been directed to analyzing the significance of the negotiation class model and the appellate repudiation of this innovative procedural mechanism.
This Article focuses on the development and fate of the negotiation class and considers the …
Frivolous Floodgate Fears, 2023 University of Arkansas
Frivolous Floodgate Fears, Blair Druhan Bullock
Indiana Law Journal
When rejecting plaintiff-friendly liability standards, courts often cite a fear of opening the floodgates of litigation. Namely, courts point to either a desire to protect the docket of federal courts or a burden on the executive branch. But there is little empirical evidence exploring whether the adoption of a stricter standard can, in fact, decrease the filing of legal claims in this circumstance. This Article empirically analyzes and theoretically models the effect of adopting arguably stricter liability standards on litigation by investigating the context of one of the Supreme Court’s most recent reliances on this argument when adopting a stricter …
The Court And The Private Plaintiff, 2023 WCL
The Court And The Private Plaintiff, Elizabeth Beske
Articles in Law Reviews & Other Academic Journals
Two seemingly irreconcilable story arcs have emerged from the Supreme Court over the past decade. First, the Court has definitively taken itself out of the business of creating private rights of action under statutes and the Constitution, decrying such moves as relics of an “ancient regime.” Thus, the Supreme Court has slammed the door on its own ability to craft rights of action under federal statutes and put Bivens, which recognized implied constitutional remedies, into an ever-smaller box. The Court has justified these moves as necessary to keep judges from overstepping their bounds and wading into the province of the …
The International Restitution Of Classical Antiquity: Creating Uniformity Within Museum Restitution Policy, 2023 Trinity College
The International Restitution Of Classical Antiquity: Creating Uniformity Within Museum Restitution Policy, Jacob Armentrout
Senior Theses and Projects
This thesis will explore the scope of the restitution debate for Greek and Italian classical antiquities and how it has evolved over the past 70 years. Chapter 1 will focus on the scholarly works of well-known figures within the restitution debate, including John Henry Merryman, James (Jim) Cuno, and Patty Gerstenblith. Their work is crucial in developing the terminology that defines the debate and also for understanding their opinions on both sides of the debate. Chapter 2 will center on claims to cultural property and restitution efforts that have been made at both the international and national level. The three …
Management’S Substantive Edges, 2023 Benjamin N. Cardozo School of Law
Developing Inclusive Language Competency In Clinical Teaching, 2023 Vanderbilt University Law School
Developing Inclusive Language Competency In Clinical Teaching, Jennifer Safstrom, Joseph Mead
Vanderbilt Law School Faculty Publications
Drawing from legal pedagogy, litigation practice, and teaching experience, this article seeks to compile a set of key considerations for inclusive language decision-making in the clinical setting. Using a multi-factor framework--accuracy, precision, relevance, audience, and respect-this analysis explores the process for deciding on terms to use in practice and the potential implications of those choices on student learning, case outcomes, and attorney-client relationships. In addition, this article explores some current trends and best practices when adopting these principles in the context of specific groups. This article connects these principles to broader academic and practice is- sues, including the American Bar …
Opioid Litigation Panel, 2023 University of Richmond
Opioid Litigation Panel, Rick Mountcastle, Paul Farrell, Eric Eyre, Patrick C. Mcginley
University of Richmond Law Review
On February 17, 2023, the University of Richmond Law Review hosted a symposium entitled Overlooked America: Addressing Legal Issues in Rural America. A portion of the event focused on the ongoing opioid epidemic in the United States, including the causes and effects of certain actions taken by players in the pharmaceutical industry. The Opioid Litigation Panel, transcribed below, brought together four of the most prominent leaders in the fight for justice in the opioid epidemic: Mr. Rick Mountcastle, Mr. Paul Farrell, Mr. Eric Eyre, and Professor Patrick McGinley. The University of Richmond Law Review was so honored to have …
Due Process Discontents In Mass-Tort Bankruptcy, 2023 Georgetown University Law Center
Due Process Discontents In Mass-Tort Bankruptcy, J. Maria Glover
Georgetown Law Faculty Publications and Other Works
No abstract provided.
The Counterintuitive Court: How The Supreme Court’S Punitive Damages Jurisprudence Endangers Marginalized Communities, 2023 Washington and Lee University School of Law
The Counterintuitive Court: How The Supreme Court’S Punitive Damages Jurisprudence Endangers Marginalized Communities, Anne Rodgers
Washington and Lee Journal of Civil Rights and Social Justice
Punitive damages are awarded in civil suits to deter intentionally reckless and grossly negligent behavior. The goal of punitive damages is to punish the tortfeasor and protect the public from future misconduct. However, the Supreme Court’s recent jurisprudence on punitive damages reflects a shift towards protecting businesses from what the Court perceives as an arbitrary taking under the Due Process Clause. This Note argues that these decisions are dangerous, especially for marginalized communities. This Note begins by defining punitive damages and common criticisms of punitive damages awards. This Note then discusses the role of the Supreme Court in reviewing punitive …
The Constitution As A Source Of Remedial Law, 2023 Georgetown University Law Center
The Constitution As A Source Of Remedial Law, Carlos Manuel Vázquez
Georgetown Law Faculty Publications and Other Works
In Equity’s Constitutional Source, Owen W. Gallogly argues that Article III is the source of a constitutional default rule for equitable remedies—specifically, that Article III’s vesting of the “judicial Power” “in Equity” empowers federal courts to afford the remedies traditionally afforded by the English Court of Chancery at the time of the Founding, and to develop such remedies in an incremental fashion. This Response questions the current plausibility of locating such a default rule in Article III, since remedies having their source in Article III would be available in federal but not state courts and would apply to state-law …
Hachette, Controlled Digital Lending, And The Consequences Of Divorcing Law From Context, 2023 Georgetown University
Hachette, Controlled Digital Lending, And The Consequences Of Divorcing Law From Context, Michelle M. Wu
Georgetown Law Faculty Publications and Other Works
This article will look at the recent Hachette decision against the Internet Archive, analyzing how the court’s reliance on past authorities with insufficient context distorted their meanings. It will focus only on the controlled digital lending (CDL) aspect, not discussing the other claims in the suit or exploring the specific implementation of CDL by the Internet Archive (IA). Since CDL programs can vary widely, IA is better situated than others to identify missing context related to the analysis of the unique components of their efforts. And other libraries engaging in CDL should be able to easily see where their programs …
Adat As Strategy For Legal Struggle And Legal Mobilization (Adat Sebagai Strategi Perjuangan Dan Mobilisasi Hukum), 2023 Universitas Gadjah Mada, Indonesia
Adat As Strategy For Legal Struggle And Legal Mobilization (Adat Sebagai Strategi Perjuangan Dan Mobilisasi Hukum), Yance Arizona
The Indonesian Journal of Socio-Legal Studies
The word "adat" has several different meanings in Indonesia. Adat can be used to describe informal dispute settlement procedures, a habit that keeps repeating itself, or a norm that develops into a code of behavior. Adat is perceived in this article as a narrative and a strategy employed by oppressed groups to fight against various forms of exclusion, particularly in relation to land grabbing for resource extraction and conservation carried out by the state and private sectors. This article will analyze the evolution and distinctions of Adat-based studies and movements in Indonesia during the colonial and national periods. Using existing …
Endnotes, 2023 American University Washington College of Law