Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Colorado Law School (431)
- Cornell University Law School (191)
- University of Michigan Law School (191)
- University of Pennsylvania Carey Law School (182)
- Case Western Reserve University School of Law (87)
-
- University of Georgia School of Law (84)
- Georgetown University Law Center (82)
- University of New Mexico (76)
- University of Nevada, Las Vegas -- William S. Boyd School of Law (70)
- Maurer School of Law: Indiana University (68)
- University of Pittsburgh School of Law (67)
- Roger Williams University (65)
- Brooklyn Law School (64)
- Boston University School of Law (59)
- Duke Law (51)
- University of Missouri School of Law (35)
- Columbia Law School (30)
- Notre Dame Law School (29)
- Pace University (25)
- University of Kentucky (23)
- University of Richmond (23)
- Fordham Law School (22)
- University at Buffalo School of Law (21)
- New York Law School (19)
- University of Baltimore Law (19)
- University of Connecticut (19)
- Touro University Jacob D. Fuchsberg Law Center (18)
- University of Washington School of Law (18)
- Vanderbilt University Law School (18)
- Washington and Lee University School of Law (18)
- Keyword
-
- Litigation (405)
- Evidence (102)
- United States (90)
- Class actions (83)
- Civil procedure (76)
-
- Colorado (74)
- Trials (61)
- Discovery (60)
- Settlement (60)
- Supreme Court (60)
- California (59)
- Courts (56)
- Jurisdiction (53)
- Congress (51)
- Dispute resolution (49)
- Lawyers (48)
- Federal courts (46)
- Empirical legal studies (44)
- Damages (43)
- EPA (42)
- West (42)
- Antitrust (41)
- BLM (41)
- Federal Rules of Civil Procedure (41)
- Juries (41)
- Arbitration (39)
- Liability (39)
- Public lands (38)
- Torts (37)
- Clean Water Act (36)
- Publication
-
- Faculty Scholarship (269)
- Articles (243)
- All Faculty Scholarship (203)
- Cornell Law Faculty Publications (186)
- Publications (168)
-
- Faculty Publications (158)
- Scholarly Works (136)
- Georgetown Law Faculty Publications and Other Works (77)
- Articles by Maurer Faculty (66)
- Journal Articles (59)
- Scholarly Articles (32)
- Life of the Law School (1993- ) (29)
- The Future of Natural Resources Law and Policy (Summer Conference, June 6-8) (28)
- Materials from All Student Organizations (26)
- Western Water Law, Policy and Management: Ripples, Currents, and New Channels for Inquiry (Martz Summer Conference, June 3-5) (26)
- Elisabeth Haub School of Law Faculty Publications (25)
- Law Faculty Publications (25)
- Water Resources Allocation: Laws and Emerging Issues: A Short Course (Summer Conference, June 8-11) (23)
- Book Chapters (22)
- Regulatory Takings and Resources: What Are the Constitutional Limits? (Summer Conference, June 13-15) (22)
- The Public Lands During the Remainder of the 20th Century: Planning, Law, and Policy in the Federal Land Agencies (Summer Conference, June 8-10) (22)
- Uncovering the Hidden Resource: Groundwater Law, Hydrology, and Policy in the 1990s (Summer Conference, June 15-17) (22)
- Water Quality Control: Integrating Beneficial Use and Environmental Protection (Summer Conference, June 1-3) (20)
- Vanderbilt Law School Faculty Publications (18)
- Groundwater: Allocation, Development and Pollution (Summer Conference, June 6-9) (17)
- Scholarly Publications (17)
- Boundaries and Water: Allocation and Use of a Shared Resource (Summer Conference, June 5-7) (16)
- Faculty Articles and Papers (16)
- Faculty Publications By Year (16)
- Federal Lands, Laws and Policies and the Development of Natural Resources: A Short Course (Summer Conference, July 28-August 1) (16)
- File Type
Articles 1 - 30 of 2556
Full-Text Articles in Law
The Unconstitutionality Of Underfunded Public Defender Systems, Braden Daniels
The Unconstitutionality Of Underfunded Public Defender Systems, Braden Daniels
Senior Honors Theses
When a defendant is ineffectively represented by a public defender due to an underfunded public defender system, a defendant whose public defender provides him only cursory representation is entitled to a new trial only if blatantly innocent. The U.S. Supreme Court should follow its precedent and declare systemically underfunded public defender systems unconstitutional, with cases meriting reversal when the underfunding is to blame for unreasonable attorney errors, regardless of prejudice. This stems logically from the Court’s holdings in Gideon v. Wainwright, Strickland v. Washington, and United States v. Cronic. Many have argued for the reversal or modification …
The Mismatched Goals Of Bankruptcy And Mass Tort Litigation, Maureen Carroll
The Mismatched Goals Of Bankruptcy And Mass Tort Litigation, Maureen Carroll
Reviews
By the end of this Term, SCOTUS must decide what to do about the mammoth Purdue Pharma bankruptcy settlement. If allowed to go forward, the $10 billion deal will not only resolve claims against the company, it will shield the Sackler family—the company’s former owners—from any further liability for their role in the opioid crisis. The deal has generated a great deal of discussion, much of it focused on the legality and wisdom of that third-party release. The authors of Against Bankruptcy take a broader view, asking a set of critical questions about the proper role of bankruptcy in the …
Prior Racist Acts And The Character Evidence Ban In Hate Crime Prosecutions, Paul F. Rothstein, Ronald J. Coleman
Prior Racist Acts And The Character Evidence Ban In Hate Crime Prosecutions, Paul F. Rothstein, Ronald J. Coleman
Georgetown Law Faculty Publications and Other Works
The killing of unarmed African-American Ahmaud Arbery and others ignited a wave of public outrage and re-focused attention on race and the criminal justice system. During the recent federal hate crimes proceedings for Arbery’s death, the prosecution introduced evidence relating to the alleged past racist acts of the defendants. This type of evidence may be seen as highly probative and desperately needed to do justice in hate crimes cases. On its face, however, such type of evidence appears to be inadmissible owing to the well-known—but little understood— evidentiary ban on character evidence prescribed in Federal Rule of Evidence 404(b) and …
Making Sense Of Abatement As A Tort Remedy, Anthony J. Sebok
Making Sense Of Abatement As A Tort Remedy, Anthony J. Sebok
Articles
Controversy over public nuisance in recent high profile cases invites the question of whether, and to what extent, it is limited by its roots in tort law. This article, which was prepared for the 2023 Clifford Symposium on “New Torts” focuses on causes of action in which the state seeks to enjoin the defendant by requiring that it abate the consequences of the invasion of a public right. In the most controversial of these public nuisance actions, such as lead paint and opioids, the wrongful conduct that is remedied by the injunctive relief has already ceased, and the state does …
Against Bankruptcy: Public Litigation Values Versus The Endless Quest For Global Peace In Mass Litigation, Abbe Gluck, Elizabeth Chamblee Burch, Adam Zimmerman
Against Bankruptcy: Public Litigation Values Versus The Endless Quest For Global Peace In Mass Litigation, Abbe Gluck, Elizabeth Chamblee Burch, Adam Zimmerman
Scholarly Works
Can bankruptcy court solve a public health crisis? Should the goal of “global peace” in complex lawsuits trump traditional litigation values in a system grounded in public participation and jurisdictional redundancy? How much leeway do courts have to innovate civil procedure?
These questions have finally reached the Supreme Court in Harrington v. Purdue Pharma L.P., the $6 billion bankruptcy that purports to achieve global resolution of all current and future opioids suits against the company and its former family owners, the Sacklers. The case provides a critical opportunity to reflect on what is lost when parties in mass torts find …
Who’S Going To Sue? A Look At Environmental Citizen Suits, Virginia C. Thomas
Who’S Going To Sue? A Look At Environmental Citizen Suits, Virginia C. Thomas
Library Scholarly Publications
The author reviews the history of citizen-plaintiff suit provisions embedded in federal and state environmental legislation.
Understanding Our Digital Fingerprints: Metadata, Competency, And The Future Practice Of Law, Stacey Lane Rowland
Understanding Our Digital Fingerprints: Metadata, Competency, And The Future Practice Of Law, Stacey Lane Rowland
Faculty Publications
Metadata, often referred to as “data about data,” plays a crucial role in the digital world. It encompasses embedded information within electronic documents that reveals details about their creation, modification, and transmission. In legal proceedings, metadata can be both helpful and controversial, as it can expose sensitive information and potentially support or refute claims of fabricated evidence. With the widespread use of smartphones and other electronic devices, individuals generate vast amounts of personal data, including metadata, that can provide detailed insights into their lives.
This Article explores the significance of metadata in various contexts, such as digital photographs, and highlights …
The Ncaa's Challenge In Determining Nil Market Value, Meg Penrose
The Ncaa's Challenge In Determining Nil Market Value, Meg Penrose
Faculty Scholarship
This Article proceeds in three parts. Part II discusses the changes that NIL has wrought in college athletics. It briefly explains collectives and their impact on NIL. Part III discusses the impossibility of limiting athletes’ “fair market value” given market value depends on what the market is willing to pay. Congress has failed to pass national legislation. Yet the mosaic of state laws is simply unfit to stand in for national legislation. And, following multiple litigation losses, the NCAA cannot be trusted to “value” the athletes themselves. Market value, if one is to be established, must be uniform and assessed …
Boom Or Bust: The Public Trust Doctrine In Canadian Climate Change Litigation, Hassan M. Ahmad
Boom Or Bust: The Public Trust Doctrine In Canadian Climate Change Litigation, Hassan M. Ahmad
All Faculty Publications
Over the past few years, Canadian courts have heard the first climate change cases. These claims have been commenced on behalf of youth and future generations who allege that governments have failed to meet or, otherwise, uphold greenhouse gas reduction targets under the Paris Agreement. This novel area of litigation has brought forth creative legal arguments to expand or re-envision existing doctrines in order to place blame for what continues to be a warming planet and increasingly unstable ecosystems. This article investigates the public trust doctrine. In Canadian courts, the doctrine’s limited and arguably parochial interpretation has diverged from its …
Duality In Contract And Tort, Tim Friehe, Joshua C. Teitelbaum
Duality In Contract And Tort, Tim Friehe, Joshua C. Teitelbaum
Georgetown Law Faculty Publications and Other Works
We study situations in which a single investment serves the dual role of increasing the expected value of a contract (a reliance investment) and reducing the expected harm of a post-performance accident (a care investment). We show that failing to account for the duality of the investment leads to inefficient damages for breach of contract and inefficient standards for due care in tort. Conversely, we show that accounting for the duality yields contract damage measures and tort liability rules that provide correct incentives for efficient breach and reliance in contract and for efficient care in tort.
Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw
Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw
Articles
Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics—electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants—measured by the fixed terms of state and federal executive officials—may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts—measured by the fixed terms of state judges—creates openings for strategic behavior among litigants (both public …
Climate Change In The Courts: A 2023 Retrospective, Maria Antonia Tigre, Margaret Barry
Climate Change In The Courts: A 2023 Retrospective, Maria Antonia Tigre, Margaret Barry
Sabin Center for Climate Change Law
Drawing from the jurisdictions covered in the Sabin Center's United States (U.S.) and Global Climate Litigation databases, this report offers insights into key developments, emerging themes, evolving legal strategies, and the pulse of climate litigation in 2023.
Aaron Twerski: Practical Wisdom At Ground Zero, Anthony J. Sebok
Aaron Twerski: Practical Wisdom At Ground Zero, Anthony J. Sebok
Articles
This Article celebrates Professor. Aaron Twerski’s “practical wisdom” in crafting a solution (with Jim Henderson) to a problem faced by Judge Alvin Hellerstein in the so-called 9/11 First Responder cases. The problem was that Congress did not include these plaintiffs within the Victims Compensation Fund (“VCF”) despite there being every reason to suspect that the interaction of workersman’s compensation law and tort law, if left to operate on their own, would generate a politically unacceptable outcome. Despite his clear misgivings – —expressed decades earlier – —about allowing those who control the workplace to enjoy the benefits of limited liability guaranteed …
Itlos Advisory Opinion On Climate Change: Summary Of Briefs And Statements Submitted To The Tribunal, Maria Antonia Tigre, Korey Silverman-Roati
Itlos Advisory Opinion On Climate Change: Summary Of Briefs And Statements Submitted To The Tribunal, Maria Antonia Tigre, Korey Silverman-Roati
Sabin Center for Climate Change Law
This report provides a summary of the briefs and statements submitted to the International Tribunal for the Law of the Sea (ITLOS) in response to the Co-Chairs of Commission of Small Island States (COSIS)’ request for an advisory opinion on climate change-related legal questions. The central issue before the ITLOS is whether State Parties to UNCLOS have specific obligations regarding the prevention, reduction, and control of marine environmental pollution stemming from climate change, as well as the protection and preservation of the marine environment concerning climate change impacts. While States and civil society organizations have put forward a variety of …
The Role Of U.S. Government Regulatioms, Bert Chapman
The Role Of U.S. Government Regulatioms, Bert Chapman
Libraries Faculty and Staff Presentations
Provides detailed coverage of information resources on U.S. Government information resources for federal regulations. Features historical background on these regulations, details on the Federal Register and Code of Federal Regulations, includes information on individuals can participate in the federal regulatory process by commenting on proposed agency regulations via https://regulations.gov/, describes the role of presidential executive orders, refers to recent and upcoming U.S. Supreme Court cases involving federal regulations, and describes current congressional legislation seeking to give Congress greater involvement in the federal regulatory process.
Why Law Isn’T Jazz: A Response, James A. Gardner
Mutual Optimism And Risk Preferences In Litigation, Keith N. Hylton
Mutual Optimism And Risk Preferences In Litigation, Keith N. Hylton
Faculty Scholarship
Why do some legal disputes fail to settle? From a bird’s eye view, the literature offers two categories of reasons. One consists of arguments based on informational disparities. The other consists of psychological arguments. This paper explores the psychological theory. It presents a model of litigation driven by risk preferences and examines the model’s implications for trials and settlements. The model suggests a foundation in Prospect Theory for the Mutual Optimism model of litigation. The model’s implications for plaintiff win rates, settlement patterns, and informational asymmetry with respect to the degree of risk aversion are examined.
Framing Effects, Rhetorical Devices, And High-Stakes Litigation: A Cautionary Tale, Marcus Moore
Framing Effects, Rhetorical Devices, And High-Stakes Litigation: A Cautionary Tale, Marcus Moore
All Faculty Publications
Opposing lawyers frame the facts of a case to serve their client, craft leading questions, and exert pressure on the witness to go along with their desired answer. To counter this, counsel for the witness must anticipate this and prepare the witness to tacitly ask themselves before answering such questions: whether a frame is being employed?; and if so, they should respond in their own words, rather than in the terms put to them by the opposing lawyer. Courts might counsel themselves to employ similar caution when incorporating discussion taken from politics or related policy debate. They may not be …
Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll
Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll
Law & Economics Working Papers
As the Supreme Court recognized in its 2021 decision in Uzuegbunam v. Preczewski, nominal damages can redress violations of “important, but not easily quantifiable, nonpecuniary rights.” For some plaintiffs who establish a violation of their constitutional rights, nominal damages will be the only relief available. In its 1992 decision in Farrar v. Hobby, however, the Court disparaged the nominal-damages remedy. The case involved the interpretation of federal fee-shifting statutes, which enable prevailing civil rights plaintiffs to recover a reasonable attorney’s fee from the defendant. According to Farrar, a plaintiff can prevail by obtaining the “technical” remedy of nominal damages, but …
Plaintiffs' Process: Civil Procedure, Mdl, And A Day In Court, Elizabeth Chamblee Burch, Abbe R. Gluck
Plaintiffs' Process: Civil Procedure, Mdl, And A Day In Court, Elizabeth Chamblee Burch, Abbe R. Gluck
Scholarly Works
The article focuses on the concept of "plaintiffs process" within the field of civil procedure. It discusses how civil procedure doctrine has traditionally been defendant-centric, focusing on the rights and protections of defendants in legal cases. It examines the role of multidistrict litigation (MDL) in this context and how it impacts plaintiffs rights and access to the courts.
A Further Look At A Hague Convention On Concurrent Proceedings, Paul Herrup, Ronald A. Brand
A Further Look At A Hague Convention On Concurrent Proceedings, Paul Herrup, Ronald A. Brand
Articles
The current project of the Hague Conference on Private International Law has reached a critical juncture that requires careful consideration of the terms that delineate the scope of the proposed convention. Work to date has not followed the mandate of the Council on General Affairs and Policy to produce a convention that would deal with concurrent proceedings, understood as including pure parallel proceedings and related actions. In two previous articles we have addressed the practical needs that should be addressed by the concurrent proceedings project and the general architecture of such a convention. The process is now mired in terminological …
Some Thoughts On Reply Briefs, Brian Wolfman
Some Thoughts On Reply Briefs, Brian Wolfman
Georgetown Law Faculty Publications and Other Works
This essay provides suggestions for writing reply briefs. It begins with a quick review of the well-understood ways in which an appellate advocate should acquire and review the information needed to write a comprehensive and powerful reply brief.
The essay then turns to the more difficult challenges of crafting the brief, making three key points:
First, don't just go tit-for-tat in responding to one point after another advanced by the appellee. That can be boring and ponderous and often requires you to argue the case on your opponent's terms. Rather, re-frame the case on your client's terms, taking the case …
The Business Of Securities Class Action Lawyering, Stephen J. Choi, Jessica Erickson, Adam C. Pritchard
The Business Of Securities Class Action Lawyering, Stephen J. Choi, Jessica Erickson, Adam C. Pritchard
Law & Economics Working Papers
Plaintiffs’ lawyers in the United States play a key role in combating corporate fraud. Shareholders who lose money as a result of fraud can file securities class actions to recover their losses, but most shareholders do not have enough money at stake to justify overseeing the cases filed on their behalf. As a result, plaintiffs’ lawyers control these cases, deciding which cases to file and how to litigate them. Recognizing the agency costs inherent in this model, the legal system relies on lead plaintiffs and judges to monitor these lawyers and protect the best interests of absent class members. Yet …
Using Odr Platforms To Level The Playing Field: Improving Pro Se Litigation Through Odr Design, J.J. Prescott
Using Odr Platforms To Level The Playing Field: Improving Pro Se Litigation Through Odr Design, J.J. Prescott
Law & Economics Working Papers
In a few short years, court-connected ODR has shown itself capable of dramatically improving access to justice by reducing or eliminating barriers rooted in the simple fact that courts have traditionally offered dispute resolution services only during certain hours, only in particular physical places, and primarily through traditional face-to-face proceedings. Given the monopoly that courthouses have long had on resolving many legal issues, too many Americans have discovered their rights are simply too difficult or costly to exercise. As court-connected ODR systems spread, offering new types of dispute resolution services everywhere and often at any time, people will soon find …
The Court And The Private Plaintiff, Elizabeth Beske
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 …
Developing Inclusive Language Competency In Clinical Teaching, Jennifer Safstrom, Joseph Mead
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 …
Management’S Substantive Edges, Alexander A. Reinert
Due Process Discontents In Mass-Tort Bankruptcy, J. Maria Glover
Due Process Discontents In Mass-Tort Bankruptcy, J. Maria Glover
Georgetown Law Faculty Publications and Other Works
No abstract provided.
The Constitution As A Source Of Remedial Law, Carlos Manuel Vázquez
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, Michelle M. Wu
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 …