Civil Procedure Commons^™

When Courts Run Amuck: A Book Review Of Unequal: How America's Courts Undermine Discrimination Law By Sandra F. Sperino And Suja A. Thomas (Oxford 2017), Theresa M. Beiner

Texas A&M Law Review

In Unequal: How America’s Courts Undermine Discrimination Law (“Unequal”), law professors Sandra F. Sperino and Suja A. Thomas provide a point-by-point analysis of how the federal courts’ interpretations of federal anti-discrimination laws have undermined their efficacy to provide relief to workers whose employers have allegedly engaged in discrimination. The cases’ results are consistently pro-employer, even while the Supreme Court of the United States—a court not known for being particularly pro-plaintiff—has occasionally ruled in favor of plaintiff employees. The authors suggest some reasons for this apparent anti-plaintiff bias among the federal courts, although they do not settle on a particular reason …

“Encroachments And Oppressions”: The Corporatization Of Procedure And The Decline Of Rule Of Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

This Article begins by providing a brief account of the corporatization of procedure through judicial decision-making and noting some of the detrimental effects it has had on the preservation of rule of law and access to justice. Part II goes on to explore how the judiciary does not retain full control over procedure and how corporate entities have little care for whether a procedural reform simply cuts back at litigation or goes further and cuts back at judicial power and the judicial role itself. To illustrate these points, Part II examines the most recent attempt at "procedural reform" by corporate …

The Proper Appellate Standard Of Review For Ptab Factual Findings Made Incidental To Claim Construction, A. David Brzozowski Ii

Catholic University Law Review

The America Invents Act (AIA) represents the most significant change to U.S. patent law since the 1952 Patent Act. Since its passage, the AIA has drawn wide support from the intellectual property community, primarily due to the new post-grant opposition proceedings the Act created.

However, certain aspects of the new system created by the AIA are controversial. Specifically, judges and practitioners alike debate which standard of review courts should apply to the factual findings made by the Patent Trial and Appeals Board (PTAB) during these opposition proceedings. While the Federal Circuit has reviewed all factual findings made at the Patent …

National Association Of Manufacturers V. Department Of Defense, Summer L. Carmack

Public Land & Resources Law Review

In an attempt to provide consistency to the interpretation and application of the statutory phrase “waters of the United States,” as used in the Clean Water Act, the EPA and Army Corps of Engineers together passed the WOTUS Rule. Unfortunately, the Rule has created more confusion than clarity, resulting in a number of lawsuits challenging substantive portions of the Rule’s language. National Association of Manufacturers v. Department of Defense did not address those substantive challenges, but instead determined whether those claims challenging the Rule must be filed in federal district courts or federal courts of appeals. In its decision, the …

California V. United States Bureau Of Land Management, Molly M. Kelly

Public Land & Resources Law Review

After President Trump’s Executive Order No. 13783 encouraging relaxing regulatory burdens on energy production, the Bureau of Land Management reevaluated its 2016 “Waste Prevention Rule” which addressed waste of natural gas from venting, flaring, or other leaks resulting from oil and natural gas production activities. The BLM sought to postpone the Rule’s compliance date to give the agency time to promulgate a new rule—effectively overruling the 2016 Rule. Plaintiffs challenged the agency’s compliance under the Administrative Procedures Act, and the court found the BLM did not properly follow APA requirements.

United States V. Osage Wind, Llc, Summer Carmack

Public Land & Resources Law Review

The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian law …

City Of Sparks Vs. Reno Newspapers, Inc., 133 Nev. Adv. Op. 56 (August 3, 2017), Brittni Griffith

Nevada Supreme Court Summaries

The Court reviewed an appeal to determine whether an appellant: (1) “properly sought the disclosure of public records by a writ of mandamus,” and (2) whether medical marijuana establishments (“MMEs”) business license identifying information must be disclosed pursuant to the Nevada Public Records Act. The Court held that NRS 239.011 provides the specific means by which to challenge the disclosure of public records, and thus Respondent properly filed a petition for a writ of mandamus. Additionally, pursuant to NRS 453A.370(5), the Department of Health and Human Services’ Division of Public and Behavior Health (“Division”) has the proper authority to adopt …

19th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2017, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Who Put The Quo In Quid Pro Quo?: Why Courts Should Apply Mcdonnell ’S “Official Act” Definition Narrowly, Adam F. Minchew

Fordham Law Review

Federal prosecutors have several tools at their disposal to bring criminal charges against state and local officials for their engagement in corrupt activity. Section 666 federal funds bribery and § 1951 Hobbs Act extortion, two such statuary tools, have coexisted for the past thirty-six years, during which time § 666 has seen an increasing share of total prosecutions while the Hobbs Act’s share of prosecutions has fallen commensurately. In the summer of 2016, the U.S. Supreme Court decided McDonnell v. United States—a decision that threatens to quicken the demise of Hobbs Act extortion in favor of § 666. If …

2016 Survey Of Rhode Island Law: Cases And Public Laws Of Note

Roger Williams University Law Review

No abstract provided.

Challenging Nonbank Sifi Designations: Ge, Metlife, And The Need For Reform, Drita Dokic

Brooklyn Journal of Corporate, Financial & Commercial Law

The Dodd-Frank Wall Street Reform and Consumer Protection Act created, among other things, the Financial Stability Oversight Council (FSOC), an entity within the U.S. Department of the Treasury tasked with assessing and mitigating financial risk. Financial institutions with over $50 billion in assets are automatically deemed “systemically important.” However, under the Dodd-Frank Act, FSOC has the authority to designate non-bank companies engaged in financial activity as systemically important as well. Once designated as a systemically important financial institution (SIFI), these companies are subject to enhanced regulation and supervision by the Federal Reserve. Because the costs associated with such enhanced regulation …

The Choice Is (Not) Yours: Why The Sec Must Further Amend Its Rules Of Practice To Increase Fairness In Administrative Proceedings, Madeline Ilibassi

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission (SEC) plays an extremely important role within the securities industry—it oversees the financial markets, protects consumers, and maintains market efficiency. One of the most important (and recently one of most criticized) responsibilities of the SEC is its duty to enforce the securities laws and punish violators. During the past two decades, and especially after the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, the SEC’s Division of Enforcement has grown substantially and has utilized administrative enforcement proceedings at an increasing rate. However; this utilization has been occurring without any substantial …

18th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2016, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

To Waive Or Not To Waive? Filing Deadlines And Hearing Requests In Administrative Adjudications, Alice Booher Johnson

Journal of the National Association of Administrative Law Judiciary

In Part II of this Article, I provide an overview of subject matter jurisdiction in relation to filing timeframes. I review the distinction between original and appellate jurisdiction using Maryland case law and a sample survey of other state case law to provide background to the question of filing deadlines and hearing requests in administrative adjudications. In Part III of this Article, I elaborate upon Supreme Court precedent on administrative filing deadlines. In Part IV of this Article, I analyze the nature of filing deadlines for hearing requests before various state agencies, with an emphasis on Maryland’s scheme. The case …

Collateral Damage: When Should The Determinations Of Administrative Adjudications Have Collateral Estoppel Effect In Subsequent Adjudications?, Matthew Faust

Fordham Law Review

Collateral estoppel is an equitable doctrine under which a court gives issue-preclusive effect to findings of fact or law made in previous proceedings. The U.S. Supreme Court has recently held that under certain circumstances, the determinations of administrative adjudications have collateral estoppel effect in federal court. The Court, however, did not address under which circumstances the determinations of administrative adjudications should have collateral estoppel effect in subsequent administrative adjudications. There has been little clear and consistent reasoning in lower federal courts about when collateral estoppel should apply in administrative adjudications, and administrative agencies vary widely in their application of collateral …

Tom V. Innovative Home Systems, Llc, 132 Nev. Adv. Op. 15 (Mar. 10, 2016), Adrienne Brantley

Nevada Supreme Court Summaries

The Court determine that the decision of the State Contractors’ Board closing homeowners’ complaint and directing contractor to make repairs to residence was not a final decision resolving a contested case, as required to preclude a homeowner from relitigating whether contractor was required to have an electrical license. The Court also determine that genuine issues of material fact existed as to whether the contractor needed an electrical license and genuine issues of material fact existed as to whether the contractor completed its contractual obligations to homeowner.

Coastal Conservation Association V. United States Department Of Commerce, Taylor R. Thompson

Public Land & Resources Law Review

The Eastern Louisiana District Court upheld Amendment 40 to the Gulf of Mexico Fishery Management Council’s Reef Management Plan. The court held that the Gulf Council and the National Marine Fisheries Service’s proposed rule establishing fishing quotas for the red snapper met all of the statutory guidelines imposed under the Magnusson-Stevens Act.

Fortifying The Rights Of Unauthorized Immigrant Workers: Why Employee-Focused Incentives Under The Nlra Would Help End The Cycle Of Labor Rights Abuse, Caitlin E. Delaney

Journal of Law and Policy

Over the past several decades, there has been an unmistakable tension between labor law and immigration law in the United States. That tension, addressed by the Supreme Court most recently in 2001, still exists for unauthorized immigrant workers who wish to assert their labor rights under the National Labor Relations Act (NLRA). While the Obama Administration has made significant strides in easing the concerns that unauthorized immigrant workers may have before filing an NLRA claim, the unavailability of the back pay remedy and the uncertainty of protection from immigration authorities leave little incentive for such workers to assert their labor …

Procedural Triage, Matthew J.B. Lawrence

Faculty Scholarly Works

Prior scholarship has assumed that the inherent value of a “day in court” is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a “day in court” can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …

Procedural Triage, Matthew J.B. Lawrence

Fordham Law Review

    Prior scholarship has assumed that the inherent value of a "day in court" is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a "day in court" can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …

"A Distinction Without A Difference"?: Bartlett Going Forward, Steven A. Schwartz

Fordham Law Review

    This Note addresses the question of whether federal law preempts state design defect claims against generic drug manufacturers regardless of which test state law uses to determine whether a drug is defective. This issue, arising out of the U.S. Supreme Court's interpretation of preemption jurisprudence and fundamental tort law as stated in Mutual Pharmaceutical Co. v. Bartlett, is significant because it plays a large role in determining to what extent generic drug manufacturers are immune to civil liability arising out of injuries caused by their generic drugs. In an age of rising medical costs and jury awards, both plaintiff …

17th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2015, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Disaggregated Classes, Benjamin P. Edwards

Faculty Scholarship

No abstract provided.

Cleaning Up Jurisdiction: Divining Congressional Intent Of Clean Air Act Section 307(B), Kevin O. Leske

Faculty Scholarship

No abstract provided.

A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux

Publications

No abstract provided.

Summary Of Déjà Vu Showgirls Of Las Vegas, Llc V. Nevada Dep’T Of Taxation, 130 Nev. Adv. Op. 72, Hayley Miller

Nevada Supreme Court Summaries

The Court (1) determined the sole remedy for a taxpayer aggrieved by a final decision from the Nevada Tax Commission concerning a tax refund request under NRS Chapter 368A (the Nevada Live Entertainment Tax) is to file a petition for judicial review pursuant to NRS 233B.130 and (2) reaffirmed its judicial estoppel doctrine.

16th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2014, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Trans-Substantivity And The Processes Of American Law, David Marcus

BYU Law Review

The term “trans-substantive” refers to doctrine that, in form and manner of application, does not vary from one substantive context to the next. Trans-substantivity has long influenced the design of the law of civil procedure, and whether the principle should continue to do so has prompted a lot of debate among scholars. But this focus on civil procedure is too narrow. Doctrines that regulate all the processes of American law, from civil litigation to public administration, often hew to a trans-substantive norm. This Article draws upon administrative law, the doctrine of statutory interpretation, and the law of civil procedure to …

Trans-Substantivity Beyond Procedure, Suzette M. Malveaux

Publications

No abstract provided.

Footnote Online Supplement: State Truancy Law Compilation, Dean H. Rivkin

College of Law Faculty Scholarship

This compilation of state truancy laws is being provided as a footnote supplement to the forthcoming article No Child Left Behind? Representing Youth and Families in Truancy Matters (2013) by Prof. Dean Hill Rivkin and Brenda McGee, of The Education Law Practicum at the University of Tennessee College of Law. It is an updated version of the laws listed in the Juvenile Law Center’s excellent amicus curiae brief in Bellevue School District v. E.S., Brief of Juvenile Law Center, et al., As Amicus Curiae on Behalf of Respondent, Bellevue Sch. Dist. v. E.S., 257 P.3d 570 (Wash. 2011) …