Law Commons^™

Sonner V. Premier Nutrition Corp., Ruth Dapper, Bryce Young

Notre Dame Law Review Reflection

When sitting in diversity jurisdiction, must a federal court apply federal equitable principles when deciding state law claims, even if state law may provide a different outcome? That was the question before the United States Court of Appeals for the Ninth Circuit in the case of Sonner v. Premier Nutrition Corp. Although the Ninth Circuit’s published opinion relies on “seventy-five years” of unchanged law, the opinion joins a long list of cases that continue to help clarify the tenets from Erie Railroad Co. v. Tompkins and inform the courts and practitioners on the relationship between state and federal authority …

Are Interlocutory Qualified Immunity Appeals Lawful?, Michael E. Solimine

Notre Dame Law Review Reflection

For half a century the Supreme Court has held that defendants in civil rights actions can avoid monetary liability if they demonstrate a qualified immunity for their actions. And for thirty years, the Court has held that district court denials of the qualified immunity defense are immediately appealable under the collateral order exception to the final order requirement. Controversial from the start, the qualified immunity defense has recently come under renewed stress, with calls from individual Justices and by leading voices in academia to either significantly modify or even abolish the defense. While primarily dealing with substantive aspects of the …

Clarifying The “Probate Lending” Debate: A Response To Professors Horton And Chandrasekher, Jeremy Kidd Ph.D.

Notre Dame Law Review Reflection

The debate over third-party funding of legal claims just got more interesting. The debate already had plot twists, such as free-market scholars lining up in opposition to the U.S. Chamber of Commerce and alongside proplaintiff scholars who they oppose in tort reform debates. Now add to the mix a recent paper by Professors Horton and Chandrasekher that introduced an entirely new angle to the debate: funding of probate disputes. Now that this parallel area of funding has been identified, comparing and contrasting probate funding with litigation funding should illuminate the incentives that funders/recipients face in both scenarios. By pointing out …

Artis V. District Of Columbia—What Did The Court Actually Say?, Doron M. Kalir

Notre Dame Law Review Reflection

This Comment does not follow the many constitutional and jurisprudential intricacies of the fascinating battle of Artis v. District of Columbia. Instead, it intends to point to what seems to be a glaring misunderstanding of the majority opinion by the dissent. This Comment also raises the possibility that the majority itself did not understand the full implications of its own opinion, as evidenced by its response to the dissent. If this is indeed the state of affairs, an inevitable question arises: What did the Court actually say in Artis v. District of Columbia?

The Rank-Order Method For Appellate Subset Selection, Michael J. Hasday

Notre Dame Law Review Reflection

This Essay proceeds as follows: Part I discusses the “fatal flaws” of random assignment and direct selection: outlier panels and judicial gaming, respectively. Part II introduces the rank-order method and explains how this method is superior to either random assignment or direct selection. Part III provides detailed examples of how the rank-order method works in practice. Part IV concludes.

A Matter Of Trial And Error, Or Betting On Appeals, Radek Goral

Notre Dame Law Review Reflection

Sampling from the actual portfolio of a leading third-party litigation financier, this Essay demonstrates that making systematic bets on pending appeals is a viable business model applicable to a wide range of cases. “Appellate investments” may include both consumer and commercial cases, including also public-interest actions where prevailing plaintiffs are permitted attorney’s fees—even if they themselves do not seek monetary relief. Additionally, the analyzed sample indicates that appellate funders buy both from plaintiffs and plaintiffs’ attorneys, often in the same case.

The overview of the business strategy of appellate financing contributes to a larger theme: the role and impact of …