Open Access. Powered by Scholars. Published by Universities.®

Law Commons

Open Access. Powered by Scholars. Published by Universities.®

Articles 1 - 13 of 13

Full-Text Articles in Law

Preserving The Nationwide National Government Injunction To Stop Illegal Executive Branch Activity, Doug Rendleman Jan 2020

Preserving The Nationwide National Government Injunction To Stop Illegal Executive Branch Activity, Doug Rendleman

Scholarly Articles

The Trump Administration’s extravagant claims of executive power have focused the federal courts’ attention on separation of powers, judicial review, and equitable jurisdiction to grant broad injunctions that forbid the administration’s violations of the Constitution and federal statutes. Critics question the federal courts’ power to grant broad injunctions that are effective everywhere. These critics maintain, among other things, that the federal courts lack jurisdiction and that broad injunctions improperly affect nonparties and militate against “percolation” of issues in a variety of courts.

This Article examines the critics’ arguments and finds them unconvincing. Accepting the critics’ arguments would rebalance ...


Brief Of Amicus Curiae The Washington And Lee University School Of Law Black Lung Clinic In Support Of Petitioners: California V. Texas, Timothy C. Macdonnell Jan 2020

Brief Of Amicus Curiae The Washington And Lee University School Of Law Black Lung Clinic In Support Of Petitioners: California V. Texas, Timothy C. Macdonnell

Scholarly Articles

Section 1556 of the Patient Protection and Affordable Care Act (PPACA) makes two major changes to the Black Lung Benefits Act. These changes remove limiting language to make it simpler for disabled miners and their families to establish that they are entitled to federal benefits. First, § 1556(a) reinstates the fifteen-year rebuttable presumption, which presumptively entitles former coal miners to benefits if they have worked over fifteen years underground and have a totally disabling pulmonary disease. The second, § 1556(b), reinstates a continuation of benefits for surviving spouses whose coal-mining spouse was receiving benefits at the time of their death ...


Gamesmanship And Criminal Process, John D. King Jan 2020

Gamesmanship And Criminal Process, John D. King

Scholarly Articles

We first learn formal structures of rules, procedures, and norms of conduct through games and sports. These lessons illuminate and inform human behavior in other contexts, including the adversarial world of criminal litigation. As critiques of the legitimacy and fairness of the criminal justice system increase, the philosophy and jurisprudence of sport offer a comparative legal system to examine criminal litigation. Allegations of gamesmanship—the aggressive and strategic use of rules that violate some sense of decorum or culture yet remain within the formal rules of engagement—cut across both contexts. This Article examines what sports can teach us about ...


Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss: Dyer V. Smith, Brandon Hasbrouck, Katherine Mims Crocker Jan 2020

Brief Of Amici Curiae Professors Katherine Mims Crocker And Brandon Hasbrouck In Support Of Neither Party With Respect To Defendant's Motion To Dismiss: Dyer V. Smith, Brandon Hasbrouck, Katherine Mims Crocker

Scholarly Articles

This case illustrates how the First Amendment functions as an essential backstop to Fourth Amendment freedoms—and vice versa. As revealed by the national response to the killing of George Floyd and so many similar injustices, the ability to record encounters with government representatives is critical to preserving civil rights, and especially the right to avoid excessive force. The public only “became aware of the circumstances surrounding George Floyd’s death because citizens standing on a sidewalk exercised their First Amendment rights and filmed a police officer kneeling on Floyd’s neck until he died.” Index Newspapers LLC v. U ...


The Constitutionality Of Nationwide Injunctions, Alan M. Trammell Jan 2020

The Constitutionality Of Nationwide Injunctions, Alan M. Trammell

Scholarly Articles

Opponents of nationwide injunctions have advanced cogent reasons why courts should be skeptical of this sweeping remedy, but one of the arguments is a red herring: the constitutional objection. This Essay focuses on the narrow question of whether the Article III judicial power prohibits nationwide injunctions. It doesn’t.

This Essay confronts and dispels the two most plausible arguments that nationwide injunctions run afoul of Article III. First, it shows that standing jurisprudence does not actually speak to the scope-of-remedy questions that nationwide injunctions present. Second, it demonstrates that the Article III judicial power is not narrowly defined in terms ...


Public Relations Litigation, Kishanthi Parella Jul 2019

Public Relations Litigation, Kishanthi Parella

Scholarly Articles

Conventional wisdom holds that lawsuits harm a corporation’s reputation. So why do corporations and other businesses litigate even when they will likely lose in the court of law and the court of public opinion? One explanation is settlement: some parties file lawsuits not to win but to force the defendant to pay out. But some business litigants defy even this explanation; they do not expect to win the lawsuit or to benefit financially from settlement. What explains their behavior?

The answer is reputation. This Article explains that certain types of litigation can improve a business litigant’s reputation in ...


Demystifying Nationwide Injunctions, Alan M. Trammell Jan 2019

Demystifying Nationwide Injunctions, Alan M. Trammell

Scholarly Articles

The phenomenon of nationwide injunctions—when a single district court judge completely prevents the government from enforcing a statute, regulation, or policy—has spawned a vigorous debate. A tentative consensus has emerged that an injunction should benefit only the actual plaintiffs to a lawsuit and should not apply to persons who were not parties. These critics root their arguments in various constitutional and structural constraints on federal courts, including due process, judicial hierarchy, and inherent limits on “judicial power.” Demystifying Nationwide Injunctions shows why these arguments fail.

This Article offers one of the few defenses of nationwide injunctions and is ...


The Legal Fate Of Internet Ad-Blocking, Russell A. Miller Jan 2018

The Legal Fate Of Internet Ad-Blocking, Russell A. Miller

Scholarly Articles

Ad-blocking services allow individual users to avoid the obtrusive advertising that both clutters and finances most Internet publishing. Ad-blocking's immense - and growing - popularity suggests the depth of Internet users' frustration with Internet advertising. But its potential to disrupt publishers' traditional Internet revenue model makes ad-blocking one of the most significant recent Internet phenomena. Unsurprisingly, publishers are not inclined to accept ad-blocking without a legal fight. While publishers are threatening suits in the United States, the issues presented by ad-blocking have been extensively litigated in German courts where ad-blocking consistently has triumphed over claims that it represents a form of ...


Precedent And Preclusion, Alan M. Trammell Jan 2017

Precedent And Preclusion, Alan M. Trammell

Scholarly Articles

Preclusion rules prevent parties from revisiting matters that they have already litigated. A corollary of that principle is that preclusion usually does not apply to nonparties, who have not yet benefited from their own “day in court.” But precedent works the other way around. Binding precedent applies to litigants in a future case, even those who never had an opportunity to participate in the precedent-creating lawsuit. The doctrines once operated in distinct spheres, but today they often govern the same questions and apply under the same circumstances, yet to achieve opposite ends. Why, then, does due process promise someone a ...


Isolating Litigants: A Response To Pamela Bookman, Alan M. Trammell Jan 2015

Isolating Litigants: A Response To Pamela Bookman, Alan M. Trammell

Scholarly Articles

In a recent article, Litigation Isolationism, Pamela Bookman identifies a phenomenon that similarly changes hue depending on one’s perspective or disposition. Bookman argues that four doctrines (personal jurisdiction, forum non conveniens, abstention comity, and the presumption against extraterritoriality) conspire to make U.S. courts significantly less hospitable to transnational litigation. In Bookman’s assessment, such isolationism is counterproductive because the doctrines often fail to vindicate their stated goals of respecting the separation of powers, international comity, and defendants’ interests. The article is crisp and elegant. It synthesizes disparate areas of law to elucidate a broader development in civil litigation ...


Transactionalism Costs, Alan M. Trammell Jan 2014

Transactionalism Costs, Alan M. Trammell

Scholarly Articles

Modern civil litigation is organized around the “transaction or occurrence,” a simple and fluid concept that brings together logically related claims in one lawsuit. It was a brilliant innovation a century ago, but its time has passed. Two inherent defects always lurked within transactionalism, but modern litigation realities have exacerbated them. First, transactionalism represents a crude estimate about the most efficient structure of a lawsuit. Often that estimate turns out to be wrong. Second, the goals of transactionalism are in tension. To function properly, the transactional approach must be simultaneously flexible (when structuring a lawsuit at the beginning of litigation ...


Standards Of Proof In Civil Litigation: An Experiment From Patent Law, David L. Schwartz, Christopher B. Seaman Apr 2013

Standards Of Proof In Civil Litigation: An Experiment From Patent Law, David L. Schwartz, Christopher B. Seaman

Scholarly Articles

Standards of proof are widely assumed to matter in litigation. They operate to allocate the risk of error between litigants, as well as to indicate the relative importance attached to the ultimate decision. But despite their perceived importance, there have been relatively few empirical studies testing jurors’ comprehension and application of standards of proof, particularly in civil litigation. Patent law recently presented an opportunity to assess the potential impact of varying the standard of proof in civil cases. In Microsoft Corp. v. i4i Limited Partnership, the Supreme Court held that a patent’s presumption of validity can only be overcome ...


Comment On Judge Joseph F. Weis, Jr., Service By Mail--Is The Stamp Of Approval From The Hague Convention Always Enough?, Doug Rendleman Jan 1994

Comment On Judge Joseph F. Weis, Jr., Service By Mail--Is The Stamp Of Approval From The Hague Convention Always Enough?, Doug Rendleman

Scholarly Articles

No abstract provided.