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Articles 1 - 30 of 541

Full-Text Articles in Law

Disappropriation, Matthew Lawrence Dec 2019

Disappropriation, Matthew Lawrence

Matthew B. Lawrence

In recent years Congress has repeatedly failed to appropriate funds necessary to honor legal commitments (aka entitlements) that are themselves enacted in permanent law. The Appropriations Clause has forced the government to defy legislative command and break such commitments, with destructive results for recipients and the rule of law. This Article is the first to address this poorly-understood phenomenon, which it labels a form of “disappropriation.” 

The Article theorizes recent high-profile disappropriations as one probabilistic consequence of Congress’s decision to create permanent legislative payment commitments that the government cannot honor without periodic, temporary appropriations. Such partially-temporary programs include Medicaid ...


Congressional Procedure And Statutory Interpretation, Larry Evans, Jarrell Wright, Neal Devins Sep 2019

Congressional Procedure And Statutory Interpretation, Larry Evans, Jarrell Wright, Neal Devins

Neal E. Devins

No abstract provided.


Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang Aug 2019

Rights And Retrenchment In The Trump Era, Stephen B. Burbank, Sean Farhang

Sean Farhang

Our aim in this Article is to leverage the archival research, data, and theoretical perspectives presented in our book, Rights and Retrenchment: The Counterrevolution against Federal Litigation, to illuminate the prospects for retrenchment in the current political landscape. In the book, we documented how an outpouring of rights-creating legislation from Democratic Congresses in the 1960s and 1970s, much of which contained provisions designed to stimulate private enforcement, prompted the conservative legal movement within the Republican Party to devise a response. Recognizing the political infeasibility of retrenching substantive rights, the movement’s strategy was to weaken the infrastructure for enforcing them ...


Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang Aug 2019

Politics, Identity, And Class Certification On The U.S. Courts Of Appeals, Stephen B. Burbank, Sean Farhang

Sean Farhang

This article draws on novel data and presents the results of the first empirical analysis of how potentially salient characteristics of Court of Appeals judges influence precedential lawmaking on class certification under Rule 23. We find that the partisan composition of the panel (measured by the party of the appointing president) has a very strong association with certification outcomes, with all-Democratic panels having more than double the certification rate of all-Republican panels in precedential cases. We also find that the presence of one African American on a panel, and the presence of two females (but not one), is associated with ...


The Supreme Court And Public Schools, Erwin Chemerinsky Aug 2019

The Supreme Court And Public Schools, Erwin Chemerinsky

Erwin Chemerinsky

Review of Justin Driver's The Schoolhouse Gate: Public Education, the Supreme Court, and the Battle for the American Mind.


What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser Jun 2019

What's A Judge To Do? Remedying The Remedy In Institutional Reform Litigation, Susan Poser

Susan Poser

Democracy by Decree is the latest contribution to a scholarly literature, now nearly thirty-years old, which questions whether judges have the legitimacy and the capacity to oversee the remedial phase of institutional reform litigation. Previous contributors to this literature have come out on one side or the other of the legitimacy and capacity debate. Abram Chayes, Owen Fiss, and more recently, Malcolm Feeley and Edward Rubin, have all argued that the proper role of judges is to remedy rights violations and that judges possess the legitimate institutional authority to order structural injunctions. Lon Fuller, Donald Horowitz, William Fletcher, and Gerald ...


Evaluating Regulatory Interpretations: Individual Statements, Russell L. Weaver Jun 2019

Evaluating Regulatory Interpretations: Individual Statements, Russell L. Weaver

Russell L. Weaver

No abstract provided.


Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg May 2019

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Marc D. Ginsberg

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted ...


Unfamiliar Justice: Indigent Criminal Defendants' Experiences With Civil Legal Needs, Lauren Sudeall, Ruth Richardson Apr 2019

Unfamiliar Justice: Indigent Criminal Defendants' Experiences With Civil Legal Needs, Lauren Sudeall, Ruth Richardson

Lauren Sudeall

Our legal system - and much of the research conducted on that system - often separates people and issues into civil and criminal silos. However, those two worlds intersect and influence one another in important ways. The qualitative empirical study that forms the basis of this Article bridges the civil-criminal divide by exploring the life circumstances and events of public defender clients to determine how they experience and respond to civil legal problems.

To date, studies addressing civil legal needs more generally have not focused on those individuals enmeshed with the criminal justice system, even though that group offers a rich source ...


Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis Mar 2019

Legislatively Directed Judicial Activism: Some Reflections On The Meaning Of The Civil Justice Reform Act, Matthew R. Kipp, Paul B. Lewis

Paul Lewis

With the Civil Justice Reform Act (CJRA), Congress attempted to further a trend that the federal judiciary had undertaken largely on its own initiative. Sensing a critical need to address the mounting expense and delay of federal civil litigation, Congress, like the judiciary, sought to increase the degree of early and active involvement of judges in the adjudicatory process. The result of this mandate has been a further emphasis on the role of the judge as a case manager. As a necessary corollary, the liberty and self-determination of individual litigants-ideals that have historically been seen as philosophical cornerstones of the ...


A Response, Fay Faraday, Eric Tucker Jan 2019

A Response, Fay Faraday, Eric Tucker

Fay Faraday

Faraday and Tucker respond to criticism about their work Constitutional Labour Rights in Canada: Farm Workers and the Fraser Case (2012).


Pran Justice: Social Order, Dispute Processing, And Adjudication In The Venezuelan Prison Subculture, Manuel A. Gomez Dec 2018

Pran Justice: Social Order, Dispute Processing, And Adjudication In The Venezuelan Prison Subculture, Manuel A. Gomez

Manuel A. Gómez

No abstract provided.


Ross Et Al. V. American Express Et Al.: The Story Behind The Spread Of Class Action-Barring Arbitration Clauses In Credit Card Agreements, Nancy A. Welsh, Stephen J. Ware Jul 2018

Ross Et Al. V. American Express Et Al.: The Story Behind The Spread Of Class Action-Barring Arbitration Clauses In Credit Card Agreements, Nancy A. Welsh, Stephen J. Ware

Nancy Welsh

Article Extract:

A recent case from the Southern District of New York, Ross et al v. American Express et al, is an antitrust case, but it also is an important case for arbitration. Ross consolidated several class actions in which plaintiffs alleged that major credit card issuing banks, including American Express (Amex), First USA, Bank of America, Citibank, Chase, Discover, and others “violated the Sherman Act by agreeing with their competitors to implement and maintain mandatory class action-barring arbitration clauses as a term or condition for holding their general purpose credit cards.


What Patent Attorney Fee Awards Really Look Like, Saurabh Vishnubhakat Jul 2018

What Patent Attorney Fee Awards Really Look Like, Saurabh Vishnubhakat

Saurabh Vishnubhakat

This essay gives an empirical account of attorney fee awards over the last decade of patent litigation. Given the current attention in legislative proposals and on the Supreme Court’s docket to more liberal fee shifting as a check on abusive patent litigation, a fuller descriptive understanding of the current regime is of utmost importance to forming sound patent litigation policy. Following a brief overview of judicial experience in patent cases and trends in patent case filing, this study presents analysis of over 200 attorney fee award orders during 2003-2013.

The study confirms the commonsense view that plaintiffs have tended ...


Dueling Grants: Reimagining Cafa's Jurisdictional Provisions, Tanya Pierce Jul 2018

Dueling Grants: Reimagining Cafa's Jurisdictional Provisions, Tanya Pierce

Tanya Pierce

Part I of the article discusses the relevant policies underlying CAFA and Rule 23. Part II briefly outlines the more straightforward operation of CAFA jurisdiction in pre-certification and post-successful certification situations before explaining the provisions in CAFA that have given rise to considerable confusion after courts deny class certification. Part III critiques the arguments made by courts and scholars in support of and against continuing jurisdiction. It then suggests an approach that is most consistent with the statute, in light of all of its relevant provisions and their corresponding limitations, and that furthers prudential concerns underlying Rule 23 and CAFA ...


“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman May 2018

“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman

Howard M Wasserman

Federal district courts are routinely issuing broad injunctions prohibiting the federal government from enforcing constitutionally invalid laws, regulations, and policies on immigration and immigration-adjacent issues. Styled “nationwide injunctions,” they prohibit enforcement of the challenges laws not only against the named plaintiffs, but against all people and entities everywhere.

The first problem with these injunctions is one of nomenclature. “Nationwide” suggests something about the “where” of the injunction, the geographic scope in which it protects. The better term is “universal injunction,” which captures the real controversy over the “who” of the injunction, as courts purport to protect the universe of all ...


Aggregation On Defendants' Terms: Bristol-Myers Squibb And The Federalization Of Mass-Tort Litigation, Andrew D. Bradt, D. Theodore Rave May 2018

Aggregation On Defendants' Terms: Bristol-Myers Squibb And The Federalization Of Mass-Tort Litigation, Andrew D. Bradt, D. Theodore Rave

Andrew D. Bradt

Although it is destined for the personal jurisdiction canon, the Supreme Court’s eight-to-one decision in Bristol-Myers Squibb Co. v. Superior Court does little to clarify that notoriously hazy doctrine. It does, however, significantly alter the balance of power in complex litigation. Bristol-Myers is a landmark case because it makes both mass-tort class actions and mass joinders impracticable in almost any state court outside of the defendant’s home states. With federal courts already hostile to class actions, plaintiffs who want to aggregate their claims will have to do so on the defendant’s terms: either on the defendant’s ...


Govern Yourself Accordingly: Crafting Effective Demand Letters, Jason G. Dykstra Mar 2018

Govern Yourself Accordingly: Crafting Effective Demand Letters, Jason G. Dykstra

Jason Dykstra

An effective demand letter can expediently resolve a dispute without litigation. But a poorly conceived demand letter can accelerate a dispute toward litigation and even generate negative publicity. Like all correspondence, demand letters need to be tailored in tone and content for varied audience, both the intended recipient and other foreseeable recipients.

Beyond the intended recipient, the audience for a demand letter could encompass insurance adjusters, in-house counsel, and perhaps even the public via social media or press coverage. Therefore, an effective demand letter should not only be polite but firm, but also tell a persuasive story that evokes incredulity ...


Public Defense Litigation: An Overview, Lauren Sudeall Lucas Mar 2018

Public Defense Litigation: An Overview, Lauren Sudeall Lucas

Lauren Sudeall

No abstract provided.


Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly Mar 2018

Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly

Peter R. Reilly

According to the U.S. Department of Justice (“DOJ”), deferred prosecution agreements are said to occupy an “important middle ground” between declining to prosecute on the one hand, and trials or guilty pleas on the other. A top DOJ official has declared that, over the last decade, the agreements have become a “mainstay” of white collar criminal law enforcement; a prominent criminal law professor calls their increased use part of the “biggest change in corporate law enforcement policy in the last ten years.”

However, despite deferred prosecution’s apparent rise in popularity among law enforcement officials, the article sets forth ...


Using Clinical Practice Guidelines And Knowledge Translation Theory To Cure The Negative Impact Of The National Hospital Peer Review Hearing System On Healthcare Quality, Cost, And Access, Katharine Van Tassel Mar 2018

Using Clinical Practice Guidelines And Knowledge Translation Theory To Cure The Negative Impact Of The National Hospital Peer Review Hearing System On Healthcare Quality, Cost, And Access, Katharine Van Tassel

Katharine Van Tassel

This Article starts with a history of the growth of hospital peer review and then examines the merits of the rationales that motivated the passage of the Health Care Quality Improvement Act of 1986 ('HCQIA'), which catapulted peer review into the national system that exists today. The Article next explains how the peer review hearing process works and how HCQIA turns private hospitals into small, individual quasi-regulatory agencies. The Article goes on to critique the 'bad apples' approach taken by hospital peer review in light of the growing body of empirical research that supports a systems improvement approach to dealing ...


Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel Mar 2018

Hospital Peer Review Standards And Due Process: Moving From Tort Doctrine Toward Contract Principles Based On Clinical Practice Guidelines, Katharine A. Van Tassel

Katharine Van Tassel

This Article proposes a solution to the problems associated with the current use of vague standards in peer review. This Article will examine the proposal that medical staffs switch from ad hoc judicial decision-making to rule-making. This switch will allow medical staffs to abandon the troublesome practice of applying vague 'standard of care' measures ex post facto. In its stead, express contractual terminology could be adopted, such as 'expectations of performance,' which incorporates specifically chosen and uniquely tailored clinical practice guidelines ('CPGs') directly into the medical staff by-laws. Describing the expectations of physician performance in express contractual terms enables physicians ...


Regulating In Uncertainty: Animating The Public Health Product Safety Net To Capture Consumer Products Regulated By The Fda That Use Innovative Technologies, Including Nanotechnologies, Genetic Modification, Cloning, And Lab Grown Meat, Katharine A. Van Tassel Mar 2018

Regulating In Uncertainty: Animating The Public Health Product Safety Net To Capture Consumer Products Regulated By The Fda That Use Innovative Technologies, Including Nanotechnologies, Genetic Modification, Cloning, And Lab Grown Meat, Katharine A. Van Tassel

Katharine Van Tassel

This Article will use nanotechnology as an example that highlights how regulation based on novelty rather than hazard achieves the proper balance between protecting public health while encouraging innovation through the animation of the public health product safety net. In Part II, this Article starts by explaining what nanotechnology is and the remarkable growth of its use in everyday consumer products. It then summarizes the steadily increasing number of studies that suggest that there are likely to be serious health risks associated with the use of nanotech consumer products. Next, it explains how the FDA [Food and Drug Administration] is ...


Assumption Of Risk As A Defense To Negligence, Gregory S. Sergienko Mar 2018

Assumption Of Risk As A Defense To Negligence, Gregory S. Sergienko

Greg Sergienko

This article will revisit the history of assumption of risk in California and elsewhere and suggest that the traditional doctrine should be modified and revived, despite the contrary approach of the Restatement (Third) of Torts. In the first part of the article, I will describe the ambiguities in the statements of assumption of risk that existed before the adoption of comparative negligence. I will show that Knight v. Jewett, which rejected assumption of risk, misinterpreted Li v. Yellow Cab Co., in which the California Supreme Court adopted a comparative negligence rule. Moreover, even if the Knight case was defensible on ...


Strategies For Dealing With Self-Represented Litigants, Jona Goldschmidt Feb 2018

Strategies For Dealing With Self-Represented Litigants, Jona Goldschmidt

Jona Goldschmidt

No abstract provided.


Class Action Settlement Residue And Cy Pres Awards: Emerging Problems And Practical Solutions, Wilber H. Boies, Latonia Haney Keith Jan 2018

Class Action Settlement Residue And Cy Pres Awards: Emerging Problems And Practical Solutions, Wilber H. Boies, Latonia Haney Keith

Latonia Haney Keith

Class action settlements often present the court and parties with the practical problem of disposing of residual funds that remain after distributions to class members. The cy pres doctrine is a well-recognized device that permits the court to designate suitable organizations to receive such funds. Recently, academics, judges, practitioners, and professional objectors have mounted a multi-faceted attack on this device, ranging from constitutional and ethical concerns to appeals challenging specific awards. This Article first describes the use of cy pres awards in class action settlements and explains why the constitutional, statutory, and ethical objections are unfounded. This Article then addresses ...


Review Of The Fight For Fair Housing: Causes, Consequences And Future Implications Of The 1968 Federal Fair Housing Act, Tim Iglesias Dec 2017

Review Of The Fight For Fair Housing: Causes, Consequences And Future Implications Of The 1968 Federal Fair Housing Act, Tim Iglesias

Tim Iglesias

This is a book review of The Fight for Fair Housing: Causes, Consequences and Future Implications of the 1968 Federal Fair Housing Act  ed. Gregory D. Squires (Routledge 2018).
In addition to summarizing and evaluating all 15 chapters this review highlights the two major contributions of the volume: (1) Some chapters (especially chapters 10, 11, 13, and 15) begin to articulate an argument that effective implementation of fair housing law is not just good for members of protected classes but valuable for everyone because it can help markets work better, promote democracy, and expand opportunity for all; (2) the chapters ...


Casting Aspersions In Patent Trials, Daniel Harris Brean, Bryan P. Clark Dec 2017

Casting Aspersions In Patent Trials, Daniel Harris Brean, Bryan P. Clark

Daniel Harris Brean

Bad actors in patent litigation can face serious consequences.  Infringers who are found to “willfully” infringe may be subject to trebled damages. Patentees who assert weak claims in bad faith can be ordered to pay the defendant’s attorneys’ fees.  These remedies are of such importance to the patent system today that the Supreme Court reinvigorated both of the respective doctrines in back-to-back landmark decisions in 2014 (Octane Fitness) and 2016 (Halo Electronics). 
Those decisions have helped district courts more effectively punish and deter misconduct. But the Supreme Court neglected to address a critical part of these remedies—whether and ...


Counter-Rejoinder: Justice Vs. Justiciability?: Normative Neutrality And Technical Precision, The Role Of The Lawyer In Supranational Social Rights Litigation, Tara J. Melish Nov 2017

Counter-Rejoinder: Justice Vs. Justiciability?: Normative Neutrality And Technical Precision, The Role Of The Lawyer In Supranational Social Rights Litigation, Tara J. Melish

Tara Melish

An important debate is currently underway in the inter-American human rights system involving the proper approach litigators, adjudicators, and advocates should take to supranational litigation of economic, social and cultural rights. Centered on questions of jurisdiction and the proper characterization and limits of justiciability, its resolution has tremendous implications for the tools available to on-the-ground advocates, their real-world effectiveness and sustainability in adjudicatory and advocacy contexts alike, and the rationalization of the system's developing jurisprudence over the long-term.

This article book-ends a trilogy of pieces appearing in the NYU Journal of International Law and Politics by two sets of ...


The Actavis Inference: Theory And Practice, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Oct 2017

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 ...