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Articles 1 - 30 of 35
Full-Text Articles in Law
“Nationwide” Injunctions Are Really “Universal” Injunctions And They Are Never Appropriate, Howard Wasserman
“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 …
Justice Deferred Is Justice Denied: We Must End Our Failed Experiment In Deferring Corporate Criminal Prosecutions, Peter Reilly
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 the argument …
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 authors, …
Dialogue On State Action, Martin A. Schwartz, Erwin Chemerinsky
Dialogue On State Action, Martin A. Schwartz, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
The Litigation Budget, Jay Tidmarsh
The Litigation Budget, Jay Tidmarsh
Jay Tidmarsh
Because of fears that litigation is too costly, reduction of litigation expenses has been the touchstone of procedural reform for the past thirty years. In certain circumstances, however, the parties have incentives—both rational and irrational—to spend more on a lawsuit than the social benefits that the case provides. Present and proposed reform efforts do not adequately address these incentives, and, in some instances, exacerbate the parties’ incentives to overspend. The best way to ensure that the cost of a lawsuit does not exceed the benefits that it provides to the parties and society is to control spending directly: to require …
Superiority As Unity, Jay Tidmarsh
Superiority As Unity, Jay Tidmarsh
Jay Tidmarsh
One of Professor Redish’s many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay, prepared for a festschrift in honor of Professor Redish, begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they achieve …
Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang
Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang
Sean Farhang
In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for …
Judge Shopping In The Eastern District Of Texas, Jonas Anderson
Judge Shopping In The Eastern District Of Texas, Jonas Anderson
J. Jonas Anderson
Patent Claim Construction: A Modern Synthesis And Structured Framework, Peter S. Menell, Matthew D. Powers, Steven C. Carlson
Patent Claim Construction: A Modern Synthesis And Structured Framework, Peter S. Menell, Matthew D. Powers, Steven C. Carlson
Peter Menell
No abstract provided.
It's Not Over 'Til It's Over: Mandating Federal Pretrial Jurisdiction And Oversight In Mass Torts, Tanya Pierce
It's Not Over 'Til It's Over: Mandating Federal Pretrial Jurisdiction And Oversight In Mass Torts, Tanya Pierce
Tanya Pierce
In 2004, just five years after introducing the drug, Vioxx, pharmaceutical company, Merck, voluntarily withdrew the prescription pain-killer after a clinical study suggested that the drug increased the risk of heart attack and stroke. But in that relatively short time, an estimated 20 million Americans had already taken the drug. By late 2007, Merck announced it would pay $4.85 billion — the largest drug settlement ever — in “global settlements” for Vioxx-related claims. These settlements ultimately included roughly 47,000 individual lawsuits and about 265 potential class actions, but the Vioxx settlements were far from global.
In 2012, a purported parallel …
Tell Us A Story, But Don't Make It A Good One: Resolving The Confusion Regarding Emotional Stories And Federal Rule Of Evidence 403, Cathren Page
Cathren Page
Abstract: Tell Us a Story, But Don’t Make It A Good One: Resolving the Confusion Regarding Emotional Stories and Federal Rule of Evidence 403 by Cathren Koehlert-Page Courts need to reword their opinions regarding Rule 403 to address the tension between the advice to tell an emotionally evocative story at trial and the notion that evidence can be excluded if it is too emotional. In the murder mystery Mystic River, Dave Boyle is kidnapped in the beginning. The audience feels empathy for Dave who as an adult becomes one of the main suspects in the murder of his friend Jimmy’s …
Amicus Brief On Behalf Of The Leo T. Mccarthy Center For Public Service And The Common Good And 44 Housing Scholars To California Supreme Court In California Building Industry Association V. City Of San Jose (S212072), Tim Iglesias, David Rusk, Jan Breidenbach, Nico Calavita, Steven Menendian, John A. Powell, Ofurhe Arnica Igbinedion, Samir Gambhir, Eli Moore
Amicus Brief On Behalf Of The Leo T. Mccarthy Center For Public Service And The Common Good And 44 Housing Scholars To California Supreme Court In California Building Industry Association V. City Of San Jose (S212072), Tim Iglesias, David Rusk, Jan Breidenbach, Nico Calavita, Steven Menendian, John A. Powell, Ofurhe Arnica Igbinedion, Samir Gambhir, Eli Moore
john a. powell
The briefs of other parties in the litigation emphasized inclusionary zoning’s goal of increasing the supply of affordable housing. This brief focuses on inclusionary zoning’s goal of promoting social inclusion and integration by locating affordable housing in the right location. The brief explains how economic and racial segregation deny equality of opportunity to low and moderate income families because segregation limits their potential for economic and social mobility by restricting access to the primary means of mobility, e.g. employment and education. Drawing from a wide array of empirical and other studies the brief demonstrates how inclusionary zoning is an effective …
Homage To Filártiga, Perry S. Bechky
Homage To Filártiga, Perry S. Bechky
Perry S. Bechky
The Supreme Court’s new decision in Kiobel severely restricted human rights litigation under the Alien Tort Statute (ATS). In doing so, the Court gravely injured the canonical human rights case of Filártiga. This essay celebrates Filártiga, demonstrating that it survives Kiobel in four key respects: its approach to the sources of international law, its conclusion that international law prohibits torture, its dynamic vision of the way the human rights revolution transformed international law, and its hope that courts can help make real a world without torture. The essay presents Filártiga as a living presence and a beacon for future development …
Unattainable Justice: The Form Of Complex Litigation And The Limits Of Judicial Power, Jay Tidmarsh
Unattainable Justice: The Form Of Complex Litigation And The Limits Of Judicial Power, Jay Tidmarsh
Jay Tidmarsh
No abstract provided.
Breathe Deeply: The Tort Of Smokers' Battery, Irene Scharf
Breathe Deeply: The Tort Of Smokers' Battery, Irene Scharf
Irene Scharf
This Article explores the long and faltering history of attempts to impose liability on tobacco product manufactures. Part II traces the manufacturers' historical and current actions of targeting youth through both promotions and deceptive advertising. Part III argues in favor of an expanded cause of action against the manufacturers for the intentional tort of battery. Part IV discusses the prospect of awards of punitive damages in these cases, and the Epilogue summarizes other advantages of the battery cause of action.
Solving The Nuisance-Value Settlement Problem: Manadatory Summary Judgment, David Rosenberg, Randy J. Kozel
Solving The Nuisance-Value Settlement Problem: Manadatory Summary Judgment, David Rosenberg, Randy J. Kozel
Randy J Kozel
The nuisance-value settlement problem arises whenever a litigant can profitably initiate a meritless claim or defense and offer to settle it for less than it would cost the opposing litigant to have a court dismiss the claim or defense on a standard motion for merits review like summary judgment. The opposing litigant confronted with such a nuisance-value claim or defense rationally would agree to settle for any amount up to the cost of litigating to have it dismissed. These settlement payoffs skew litigation outcomes away from socially appropriate levels, undermining the deterrence and compensation objectives of civil liability. Yet current …
The Constitutional Dilemma Of Litigation Under The Independent Counsel System, William K. Kelley
The Constitutional Dilemma Of Litigation Under The Independent Counsel System, William K. Kelley
William K. Kelley
No abstract provided.
New Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett
New Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett
Matthew J. Barrett
Following the publication of Opportunities for Obtaining and Using Litigation Reserves and Disclosures, which highlighted the helpful information about litigation reserves that a litigator can often detect or discover from an opponent's financial statements, accounting books and records, tax returns, public filings with the Securities and Exchange Commission (the SEC), and auditor, two important regulatory developments occurred in early 2003 that create additional opportunities to obtain information about an opponent's assessments of (i) expected liability in the underlying case or (ii) obligations or settlements in similar cases. First, pursuant to the Sarbanes-Oxley Act of 2002, the SEC issued final regulations …
Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett
Opportunities For Obtaining And Using Litigation Reserves And Disclosures, Matthew J. Barrett
Matthew J. Barrett
In late 1975, the accounting and legal professions reached an accord that led to three new professional standards: (1) a new financial accounting rule for contingencies, (2) an auditing standard addressing the requirement that an auditor obtain evidence about an audit client's contingent liabilities to determine whether the client has properly treated those items in its financial statements, and (3) the American Bar Association's Statement of Policy Regarding Lawyers' Responses to Auditors' Requests for Information under that auditing standard. The Commentary that accompanied the Statement of Policy explicitly stated that the organized bar's expectation that communications between lawyers and auditors …
Risk Regulation In Perspective: Reserve Mining Revisited, Daniel A. Farber
Risk Regulation In Perspective: Reserve Mining Revisited, Daniel A. Farber
Daniel A Farber
The Reserve Mining v. EPA case involved the disposal of iron ore mine tailings containing asbestos in Lake Superior over an extended period. The case litigation is described, and the decision forcing the Reserve Mining Co to spend over $200 million to eliminate asbestos from the drinking water of Duluth, MN, is assessed in light of uncertain risk assessment. It is concluded that the court decision was the prudent one on the basis of both cost/benefit and feasibility analysis. Cost/benefit analysis focuses on the possible number of lives saved vs. the total cost of control, while feasibility analysis stresses factors …
The Calculation Of Prejudgment Interest, Michael S. Knoll, Jeffrey M. Colon
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 …
In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program, Thomas Stipanowich
In Quest Of The Arbitration Trifecta, Or Closed Door Litigation?: The Delaware Arbitration Program, Thomas Stipanowich
Thomas J. Stipanowich
The Delaware Arbitration Program established a procedure by which businesses can agree to have their disputes heard in an arbitration proceeding before a sitting judge of the state’s highly regarded Chancery Court. The Program arguably offers a veritable trifecta of procedural advantages for commercial parties, including expert adjudication, efficient case management and short cycle time and, above all, a proceeding cloaked in secrecy. It also may enhance the reputation of Delaware as the forum of choice for businesses. But the Program’s ambitious intermingling of public and private forums brings into play the longstanding tug-of-war between the traditional view of court …
Superiority As Unity, Jay Tidmarsh
Superiority As Unity, Jay Tidmarsh
Jay Tidmarsh
One of Professor Redish’s many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they achieve net social gains. This idea of “superiority” presents some …
Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai
Conceptualizing Constitutional Litigation As Anti-Government Expression: A Speech-Centered Theory Of Court Access, Robert L. Tsai
Robert L Tsai
This Article proposes a speech-based right of court access. First, it finds the traditional due process approach to be analytically incoherent and of limited practical value. Second, it contends that history, constitutional structure, and theory all support conceiving of the right of access as the modern analogue to the right to petition government for redress. Third, the Article explores the ways in which the civil rights plaintiff's lawsuit tracks the behavior of the traditional dissident. Fourth, by way of a case study, the essay argues that recent restrictions - notably, a congressional limitation on the amount of fees counsel for …
Giving Notice: An Argument For Notification Of Putative Plaintiffs In Complex Litigation, Marjorie A. Silver
Giving Notice: An Argument For Notification Of Putative Plaintiffs In Complex Litigation, Marjorie A. Silver
Marjorie A. Silver
Professor Silver advocates recognition of an inherent judicial power to send or authorize notice of pending litigation to potentially interested persons with unfiled claims. Recognizing such a judicial power is consistent with recent legal developments establishing a role for judges in expediting and managing federal litigation. Although the Federal Rules of Civil Procedure only explicitly provide for notice to potential parties in Rule 23 class action litigation, Professor Silver demonstrates that a more general judicial power to notify putative plaintiffs is consistent with the federal rules and the Constitution. She also shows that the first amendment values support a judicial …
Dialogue On State Action, Martin A. Schwartz, Erwin Chemerinsky
Dialogue On State Action, Martin A. Schwartz, Erwin Chemerinsky
Martin A. Schwartz
No abstract provided.
Supreme Court Section 1983 Developments, Martin A. Schwartz
Supreme Court Section 1983 Developments, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Supreme Court Section 1983 Developments: October 1998 Term, Martin A. Schwartz
Supreme Court Section 1983 Developments: October 1998 Term, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.
Section 1983 Litigation – Supreme Court Developments, Martin A. Schwartz
Section 1983 Litigation – Supreme Court Developments, Martin A. Schwartz
Martin A. Schwartz
No abstract provided.