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Articles 1 - 30 of 85
Full-Text Articles in Law
The Federal Rule Of Civil Procedure 37(E) And Achieving Uniformity Of Case Law On Sanctions For Esi Spoliation: Focusing On The “Intent To Deprive” Culpability Under Rule 37(E)(2), Jung Won Jun, Rockyoun Ihm
The Federal Rule Of Civil Procedure 37(E) And Achieving Uniformity Of Case Law On Sanctions For Esi Spoliation: Focusing On The “Intent To Deprive” Culpability Under Rule 37(E)(2), Jung Won Jun, Rockyoun Ihm
Catholic University Law Review
Federal Rule of Civil Procedure 37(e) was adopted in 2015 primarily to resolve the circuit split and promote uniformity of case law on ESI (electronically stored information) spoliation sanctions. This Article examines relevant case law under the new Rule 37(e) and finds that courts have treated similar spoliation conduct differently due to the lack of a clear standard for finding the spoliator's intent to deprive another party of the use of the destroyed ESI at issue. This inconsistency has been exacerbated by the courts’ inconsistent reliance on their inherent authority to sanction based on bad faith analyses. Therefore, this Article …
Deplatformed: Social Network Censorship, The First Amendment, And The Argument To Amend Section 230 Of The Communications Decency Act, John A. Lonigro
Deplatformed: Social Network Censorship, The First Amendment, And The Argument To Amend Section 230 Of The Communications Decency Act, John A. Lonigro
Touro Law Review
No abstract provided.
Expanding The Administrative Record: Using Pretext To Show "Bad Faith Or Improper Behavior", Laura Boyer
Expanding The Administrative Record: Using Pretext To Show "Bad Faith Or Improper Behavior", Laura Boyer
University of Colorado Law Review
This Comment argues that courts should more readily permit extra-record discovery when preliminary signs of pretext strongly suggest "bad faith and improper behavior" by agency decision-makers. 3 1 Section L.A sets the scene by describing the basic mechanics of litigation challenging agency decisions. Section I.B shifts focus by examining two recent Supreme Court decisions that illustrate the Court's struggle to review executive action where an agency seems to have offered a pretextual justification. Part II then shows how agencies' reliance on pretextual justifications is becoming a growing and serious problem-especially within the Trump Administration-and describes a 2017 decision by the …
Pepperdine University School Of Law Legal Summaries, Analise Nuxoll
Pepperdine University School Of Law Legal Summaries, Analise Nuxoll
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Due Process People V. Scott (Decided June 5, 1996)
Due Process People V. Scott (Decided June 5, 1996)
Touro Law Review
No abstract provided.
Insurance Appraisal In Texas And Its Place In Coverage Litigation, Brendan K. Mcbride, William J. Chriss, Matthew R. Pearson
Insurance Appraisal In Texas And Its Place In Coverage Litigation, Brendan K. Mcbride, William J. Chriss, Matthew R. Pearson
St. Mary's Law Journal
Insurance appraisal is a contractually agreed process for resolving a disagreement between the insurance carrier and the policyholder about the amount of a loss under an insurance policy. Appraisal clauses have been a feature of insurance policies in Texas for well over a century. Old Texas cases were uniform to the effect that appraisal was a method to establish the “amount” of the loss under circumstances where coverage was not in dispute, but a recent line of cases has allowed insurers to escape liability for breach of contract, attorneys’ fees, statutory and common law “bad faith,” and even liability under …
It’S A Trap! The Ethical Dark Side Of Requests For Admission, Colin Flora
It’S A Trap! The Ethical Dark Side Of Requests For Admission, Colin Flora
St. Mary's Journal on Legal Malpractice & Ethics
Due largely to an overlap of authority between disciplinary bodies charged with supervising the professional conduct of attorneys and the authority of courts to supervise litigation, the ethical ramifications of routine discovery abuses often pass without comment. That is because disciplinary authorities routinely defer to courts to police litigation behavior despite courts frequently rejecting the role of enforcers of professional rules. A further contributing factor to unethical conduct becoming routine practice in discovery are ill-defined parameters and a dearth of guidance. One tool in particular, requests for admission, has gone overlooked in the literature and caselaw, but poses unique ethical …
The Surety's Liability For "Bad Faith": Claims For Extra-Contractual Damages By An Obligee Under The Payment Bond, John J. Aromando
The Surety's Liability For "Bad Faith": Claims For Extra-Contractual Damages By An Obligee Under The Payment Bond, John J. Aromando
Maine Law Review
The theory of “bad faith” is by now well established in the areas of liability and casualty insurance. Although the relief available takes different forms in different jurisdictions, a common thread is the exposure of the insurance carrier to extra-contractual damages as a result of its conduct in handling a claim. Depending on the jurisdiction, these extra-contractual damages can include one or more of the following: penal interest and attorneys' fees; consequential damages for breach of contract; and recovery in tort. Even in the most restrictive jurisdiction the exposure is substantial, and in the most expansive it can be catastrophic. …
Discouraging Frivolous Copyright Infringement Claims: Fee Shifting Under Rule 11 Or 28 U.S.C. § 1927 As An Alternative To Awarding Attorney’S Fees Under Section 505 Of The Copyright Act, David E. Shipley
Journal of Intellectual Property Law
The United States Supreme Court’s 2016 decision in Kirtsaeng v. John Wiley & Sons resolved a disagreement over when it is appropriate to award attorney’s fees to a prevailing defendant under section 505 of the Copyright Act, and ended a perceived venue advantage for losing plaintiffs in some jurisdictions. The Court ruled unanimously that courts are correct to give substantial weight to the question of whether the losing side had a reasonable case to fight, but that the objective reasonableness of that side’s position does not give rise to a presumption against fee shifting. It made clear that other factors …
Trademarks: German Manufacturer’S Deliberate Infringement Of Domestic Trademark Sufficient To Support Injunctive Relief, But Not Supportive Of Award For Damages, Kimley R. Johnson
Trademarks: German Manufacturer’S Deliberate Infringement Of Domestic Trademark Sufficient To Support Injunctive Relief, But Not Supportive Of Award For Damages, Kimley R. Johnson
Georgia Journal of International & Comparative Law
No abstract provided.
The Battle To Define The Scope Of Attorney-Client Privilege In The Context Of Insurance Company Bad Faith: A Judicial War Zone, Steven Plitt, Joshua D. Rogers
The Battle To Define The Scope Of Attorney-Client Privilege In The Context Of Insurance Company Bad Faith: A Judicial War Zone, Steven Plitt, Joshua D. Rogers
The University of New Hampshire Law Review
[Excerpt] "The attorney-client privilege is the "oldest of the privileges for confidential communications known to the common law."' The privilege is "[d]eeply rooted in public policy," and plays a 'vital role' in the administration of justice." As such, the privilege is "traditionally deemed worthy of maximum legal protection"' and "it remains one of the most carefully guarded privileges and is not readily to be whittled down." The privilege has come under assault in the insurance bad faith context in recent decades resulting in a "whittling down" of the privilege for insurance companies as a target party. Over the past couple …
Waive Goodbye To Appellate Review Of Plea Bargaining: Specific Performance Of Appellate Waiver Provisions Should Be Limited To Extraordinary Circumstances, Holly P. Pratesi
Waive Goodbye To Appellate Review Of Plea Bargaining: Specific Performance Of Appellate Waiver Provisions Should Be Limited To Extraordinary Circumstances, Holly P. Pratesi
Brooklyn Law Review
In the federal criminal justice system, plea bargaining remains the predominant method for disposing of cases. An important provision in most plea agreements consists of the waiver of the defendant’s right to appeal the conviction or sentence. This note explores the constitutional, contractual, and policy implications of a recent Third Circuit decision that would allow specific performance as a remedy where a defendant’s only breach of the plea agreement consists of filing an appeal arguably precluded by an appellate waiver provision. This note argues that the approach taken by the Third Circuit in United States v. Erwin could effectively preclude …
Texas's Excessive Demand Doctrine Impacts Recoveries In Litigation., Stephanie M. Green
Texas's Excessive Demand Doctrine Impacts Recoveries In Litigation., Stephanie M. Green
St. Mary's Law Journal
A party demanding money they are not entitled to becomes subject to the excessive demand doctrine. Because the excessive demand doctrine is an affirmative defense, a defending party must allege its claim of excessive demand in its pleadings. A party must “plead it, prove it, and obtain findings of fact on its essential elements.” To obtain findings on the issue, both the pleadings and the evidence are required to put a question or instruction before the jury. Ensuring that the evidence is enough depends upon the trial court—whose judgment will only be overturned upon a showing of an abuse of …
The Personal Liability Of Insurance Claims Adjusters For Insurance Bad Faith, Chad G. Marzen
The Personal Liability Of Insurance Claims Adjusters For Insurance Bad Faith, Chad G. Marzen
West Virginia Law Review
No abstract provided.
Concubinage And Union Libre: A Historical Comparison Of The Rights Of Unwed Cohabitants In Wrongful Death Actions In France And Louisiana, Robert F. Taylor
Concubinage And Union Libre: A Historical Comparison Of The Rights Of Unwed Cohabitants In Wrongful Death Actions In France And Louisiana, Robert F. Taylor
Georgia Journal of International & Comparative Law
No abstract provided.
In California Excess Liability Cases, Does “Bad Faith” In Law Equal “Strict Liability” In Practice?, Roger D. Marlow, Ronald E. Magnuson
In California Excess Liability Cases, Does “Bad Faith” In Law Equal “Strict Liability” In Practice?, Roger D. Marlow, Ronald E. Magnuson
Pepperdine Law Review
No abstract provided.
The Overruling Of Royal Globe: A "Royal Bonanza" For Insurance Companies, But What Happens Now?, Michael J. Gainer
The Overruling Of Royal Globe: A "Royal Bonanza" For Insurance Companies, But What Happens Now?, Michael J. Gainer
Pepperdine Law Review
No abstract provided.
Eyes Wide Shut: Induced Patent Infringement And The Willful Blindness Standard, Kristin M. Hagen
Eyes Wide Shut: Induced Patent Infringement And The Willful Blindness Standard, Kristin M. Hagen
Marquette Intellectual Property Law Review
None.
Practical Ethics For The Professional Prosecutor., Enrico B. Valdez
Practical Ethics For The Professional Prosecutor., Enrico B. Valdez
St. Mary's Journal on Legal Malpractice & Ethics
In Brady v. Maryland, the United States Supreme Court held that the prosecution's withholding of material exculpatory evidence violated the defendant's due process rights regardless of the absence of bad faith. The implications of this duty can be seen in the case of John Thompson, a man who was convicted of murder in Louisiana in 1985 after the prosecution failed to turn over exculpatory evidence. Thompson was able to get his conviction reversed and subsequently sued the district attorney's office. This Article analyzes Brady and the decisions that followed it to outline the obligations of prosecutors who are in possession …
Good Faith In Revlon-Land, Christopher M. Bruner
Good Faith In Revlon-Land, Christopher M. Bruner
NYLS Law Review
No abstract provided.
Deconstructing Lyondell: Reconstructing Revlon, Lawrence Lederman
Deconstructing Lyondell: Reconstructing Revlon, Lawrence Lederman
NYLS Law Review
No abstract provided.
Reviving Lenity And Honest Belief At The Boundaries Of Criminal Law, John L. Diamond
Reviving Lenity And Honest Belief At The Boundaries Of Criminal Law, John L. Diamond
University of Michigan Journal of Law Reform
It is a common misconception that there is a line between criminal and innocent conduct that is transparent and fixed. In fact, much of criminal law is fluid and elastic, free, if strategically applied, to label conduct as legal or illegal. In some cases, this reflects crimes that are vaguely defined or imprecise. In other cases, the prohibited conduct simply includes what is so conventionally accepted as legal that the criminal label is perceived as inapplicable until a prosecutor chooses to apply it. The problem of a fluid rather than a fixed line for criminality is that prosecutorial discretion becomes …
Are An Empty Head And A Pure Heart Enough? Mens Rea Standards For Judge-Imposed Rule 11 Sanctions And Their Effect On Attorney Action, Sybil L. Dunlop
Are An Empty Head And A Pure Heart Enough? Mens Rea Standards For Judge-Imposed Rule 11 Sanctions And Their Effect On Attorney Action, Sybil L. Dunlop
Vanderbilt Law Review
"In her wildest dreams, Barbie could not have imagined herself in the middle of Rule 11 proceedings."' However, in 2002, Mattel's Barbie Doll found herself in the center of "acrimonious litigation." Attorney James Hicks brought suit on behalf of Harry Christian, claiming that the Cool Blue Barbie infringed on the Christian Claudene Doll's copyright. Hicks, however, had failed to discover that Mattel designed Cool Blue Barbie six years before Christian's Claudine Doll. In light of this egregious error, the Ninth Circuit held that the district court did not abuse its discretion in finding Hicks' complaint frivolous under Rule 11. Barbie …
Rethinking Section 142 Of The Restatement Of Restitution: Fault, Bad Faith, And Change Of Position, John D. Mccamus
Rethinking Section 142 Of The Restatement Of Restitution: Fault, Bad Faith, And Change Of Position, John D. Mccamus
Washington and Lee Law Review
No abstract provided.
Attorneys As Debt Relief Agencies: Constitutional Considerations, Marisa Terranova
Attorneys As Debt Relief Agencies: Constitutional Considerations, Marisa Terranova
Fordham Journal of Corporate & Financial Law
No abstract provided.
Director Compliance With Elusive Fiduciary Duties In A Climate Of Corporate Governance Reform, Nadelle Grossman
Director Compliance With Elusive Fiduciary Duties In A Climate Of Corporate Governance Reform, Nadelle Grossman
Fordham Journal of Corporate & Financial Law
No abstract provided.
Setting The Limits In Texas Construction Law: A Look At The Surety's Limitations Under Indemnity Agreements And Equitable Subrogation Comment., John C. Warren
Setting The Limits In Texas Construction Law: A Look At The Surety's Limitations Under Indemnity Agreements And Equitable Subrogation Comment., John C. Warren
St. Mary's Law Journal
To clarify divergent case law, Texas courts should adopt good faith as the necessary standard governing indemnity agreements. Texas court decisions limiting settlement of bond claims by sureties can be split into three categories: (1) those cases where indemnity agreements fail to vest authority in the indemnitee to settle claims or require a good faith standard; (2) those expressly stating indemnitees have authority to settle claims in good faith; and (2) those expressly vesting a surety with exclusive rights to determine which bonded claims should be settled. Under the first line of cases courts apply common law indemnity principles requiring …
A Tarnished Golden Rule — Why Badillo V. Mid Century Insurance Co. Demands Further Clarification From The Oklahoma Supreme Court Regarding The Tort Of Bad Faith, Andrew Kernan
Oklahoma Law Review
No abstract provided.
Use Of Colossus To Measure The General Damages Of A Personal Injury Claim Demonstrates Good Faith Claims Handling, Dawn R. Bonnett
Use Of Colossus To Measure The General Damages Of A Personal Injury Claim Demonstrates Good Faith Claims Handling, Dawn R. Bonnett
Cleveland State Law Review
Because the law of bad faith is the most volatile of the causes of action, this Note will discuss how using Colossus demonstrates good faith claims handling by insurance companies. Initially, this Note will discuss how Colossus works so readers have an understanding of the product. Following the Colossus section, the Note will discuss the history of bad faith. Finally, this Note will analyze how Colossus assists insurers in meeting the different good faith standards across the nation.