Civil Procedure Commons^™

Doug Laycock And Creativity In Restitution—The Henrietta Lacks Litigation As A Test Case, Doug Rendleman, Caprice L. Roberts

Scholarly Articles

This Article explores the Henrietta Lacks litigation as a test case for Professor Laycock's writings and theories on the law of unjust enrichment and restitution remedies. A series of modern lawsuits brought by the Lacks Estate allege that defendant companies continue to make unjust profits with knowledge of the unsavory provenance of the Henrietta Lacks immortal cell line. The only count in the complaints is unjust enrichment. The core remedy is restitutionary disgorgement of unjust gains. The authors connect the novel nature of the lawsuits to foundational restitution principles. Professor Laycock's scholarly articles, books, and law reform projects bring deeper …

Through A Glass Darkly: How Securities Disclosures Give A Distorted View Of The Economy, Gerald F. Davis

Seattle University Law Review

Our understanding of the American economy often relies on stylized facts derived from mandatory disclosures by listed corporations. Data vendors like Standard & Poor’s vacuum up 10Ks and proxy statements into databases, and scholars distill these into tentative maps. This may have been adequate for a postwar economy centered on asset-heavy manufacturers, but it is increasingly out of step with an information-based economy. Companies listed on the stock market are fewer in number and less representative than they were, light in tangible assets and people, and heavy on IP. Basic facts such as what industry they are in are increasingly …

A City’S Day In Court: Using Class Action Principles To Protect Cities’ Due Process Rights, David Stage

Marquette Law Review

In a recent trend in public law, municipalities are increasingly bringing “affirmative litigation,” suing large corporations to protect municipal residents and increase revenue. As affirmative litigation becomes popular among municipalities, more and more municipalities have found that their respective states (e.g., the State of Illinois for the City of Chicago) have already sued the would-be defendant for the same action. Because of the state’s prior action, the defendant can raise the common law defense of res judicata against the municipality to preclude the municipality’s lawsuit. If a defendant wants to raise the defense and preclude a subsequent lawsuit, then the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Corporate Scenarios: Drawing Lessons From History, Madison Condon

Seattle University Law Review

As corporations are increasingly pressed to reveal information about their exposure to climate-related risks, they are often asked to undertake and disclose the outcome of “scenario analysis.” In this exercise, corporations, including financial institutions, examine how their business would fare under different pathways the future may take. One oft-used scenario, for example, is the International Energy Agency’s “Net-Zero by 2050: A Roadmap for the Energy Sector.” This Essay presents a history of the use of scenarios as a corporate planning tool, particularly in the oil industry, arguing that it is key for understanding our present moment and the role of …

Shareholder Expression In A Time Of Heightened Political Tension, Aaron A. Dhir

Seattle University Law Review

In this article, I provide context for my forthcoming research project on shareholder proposals and racial equity audits. Since the murder of George Floyd in May of 2020, progressive shareholder actors have increasingly used the proposal mechanism to advance diversity, equity, inclusion, and justice-related goals. These proposals have frequently gone beyond requesting the usual corporate fare of diversity trainings, intersectionality workshops, affinity groups, etc. Instead, a more ambitious type of proposal asks corporate America to conduct racial equity audits, defined as “an independent, objective and holistic analysis of a company’s policies, practices, products, services and efforts to combat systemic racism …

Corporate Governance Speech, Sarah C. Haan

Seattle University Law Review

The State has always regulated the intra-firm communications that make corporate governance possible, most commonly by mandating disclosures of information by a corporation to its shareholders. Some such laws are labeled “securities regulation,” but securities regulation is a broad category that extends to speech by actors who are outside the corporate enterprise as well. Also, the conventional securities regulation category does not capture all such laws; other examples, including informationforcing mandates, can be found in state corporate law. This Article uses the term “corporate governance speech” to describe the communications among shareholders, directors, and officers through which corporate governance is …

Dark Accounting Matter, Colleen Honigsberg

Seattle University Law Review

Physicists calculate that approximately 85% of the matter in the universe is composed of “dark matter” that “does not absorb, reflect, or emit electromagnetic radiation and is therefore difficult to detect.” The S&P 500 currently trades at a price-to-book value of 4.2, suggesting that book value accounts for less than 20% of the S&P 500’s market value. The remaining 80% appears nowhere in these firms’ balance sheets—it is invisible to contemporary accounting techniques and constitutes “dark accounting matter.”

Some “dark accounting matter” is composed of factors commonly described as components of “ESG.” Human capital, for example, is an intangible asset …

The Employees’ Dilemma: Balancing Internal Reporting, Whistleblowing, And Insider Trading Risks, Geeyoung Min

Seattle University Law Review

The Essay examines how recent developments in insider trading regulations and whistleblower reward programs can lead to unintended and counterproductive results of discouraging employees from using internal reporting channels within corporate compliance programs. While the presence of a robust and well-functioning corporate compliance program is a critical factor both in mitigating the level of public enforcement actions against companies and in protecting corporate managers from liability in private litigation, these programs often provide little incentive for employees to report potential misconduct internally.

Corporate compliance programs are designed to promote the upward information flow within the company, which is essential for …

How The Antidiscrimination Law Of Commercial Transactions Really Works, Helen Norton

Seattle University Law Review

A variety of businesses now cite 303 Creative when seeking First Amendment protection for their refusal to serve certain customers based on those customers’ protected class status. How this litigation will play out remains to be seen. But future courts need not, and should not, repeat the 303 Creative Court’s misunderstanding of how the antidiscrimination law of commercial transactions actually works.

Part I of this Essay explains the Court’s longstanding understanding of the antidiscrimination law of commercial transactions, and then describes the Court’s failure to engage with this precedent in 303 Creative. Part II then identifies the 303 Creative decision’s …

Green Dividends: A Case Study In Green Dividends And The Conditions For Private Ordering Solutions, Anne M. Tucker

Seattle University Law Review

This Essay introduces a novel private ordering solution to facilitate corporate investments in pro-social and environmental initiatives: Green dividends. Green dividends are an optional increase in shareholder dividends that are returned to the company to be reinvested in environmental initiatives or kept by a shareholder.

Green dividends pose an alternative to the current gridlocked debate that corporations can’t, won’t, shouldn’t, and shouldn’t even try to act in pro-social or environmental ways. Turning the common refrains on their head converts each narrative into an element for a successful private ordering solution: authority, accountability, shareholder buy-in, and government- backed enforcement. With Green …

Does Climate Disclosure Work To Reduce Greenhouse Gas Emissions? Emerging Evidence Suggests Cautious Optimism, Cynthia A. Williams

Seattle University Law Review

Significant regulatory resources have been spent developing global, voluntary climate and sustainability disclosure standards, such as the TCFD, TNRD, and ISSB’s Sustainability and Climate Disclosure standards, or domestically required disclosures, such as in the EU and in the U.S. Thus, it is important to evaluate whether this disclosure, particularly voluntary, qualitative disclosure, will have the power to shift the allocation of capital, will have a significant effect on the management of climate risk within firms, and ultimately will reduce climate change risk and biodiversity loss.

In this Article, several interrelated questions will be discussed. First, what does the empirical evidence …

Do Federal Circuit Courts Of Appeal Provide Adequate Assistance To Self-Represented Litigants? A Review Of The Circuits’ Websites Resources, Jona Goldschmidt

Indiana Journal of Law and Social Equality

No abstract provided.

Symposium Transcript, In Re Opioid Litigation: The Trial Phase, Rodger D. Citron

Touro Law Review

In October 2023, Touro Law Center held a two-day conference on “The Past and Future of Opioid Litigation.” The inspiration for the conference was an extraordinary five-month jury trial in Suffolk County presided over by Hon. Jerry Garguilo. The trial, which was the first in the United States to include all parties in the pharmaceutical supply chain, from manufacturers to wholesale distributors to retail sellers, began in the summer of 2021. Ultimately, in 2022, the case settled. This allowed Judge Garguilo and attorneys from the case – Jayne Conroy, who represented one of the plaintiffs, Suffolk County, and Harvey Bartle, …

Opioid Settlements And Profitable Public Nuisances, Clayton J. Masterman

Touro Law Review

The global settlements between state and local governments and opioid manufacturers, distributors, and retailers require opioid defendants to transform their businesses and pay more than $40 billion to abate the ongoing opioid epidemic. The $40 billion in abatement funds is a substantial pool of money that is likely to help states combat opioid use and abuse. Large as the payments are, however, they are significantly smaller than the profits that the opioid defendants made over the course of the epidemic or the total harm that they caused. This Article argues that the global opioid settlements incentivize future defendants to create …

Addressing Opioid Use Disorder In The Middle East And North Africa (Mena) Regions, Alyaa Chace

Touro Law Review

The opioid crisis has devastated communities across the United States, prompting extensive litigation against pharmaceutical companies for their role in fueling addiction. Aggressive pharmaceutical marketing has led to the development of key lawsuits against Purdue Pharmaceuticals, the Sackler family, Johnson & Johnson, and Teva Pharmaceuticals, as well as a landmark $26 billion global settlement involving major distributors. U.S. courts have played a crucial role in corporate accountability, mandating record financial settlements alongside behavioral and policy reforms. By contrast, the opioid crisis in MENA, which stemmed largely from illicit drug trafficking often linked to geopolitical instability, has been more often met …

Symposium Transcript, In Re Opioid Litigation: The Pretrial Phase, Rodger D. Citron

Touro Law Review

In October 2023, Touro Law Center held a two-day conference on “The Past and Future of Opioid Litigation.” The inspiration for the conference was an extraordinary five-month jury trial in Suffolk County presided over by Hon. Jerry Garguilo. The trial, which was the first in the United States to include all parties in the pharmaceutical supply chain, from manufacturers to wholesale distributors to retail sellers, began in the summer of 2021. As Touro Law Dean Elena Langan notes in her introductory remarks below, because of the pandemic, the trial began and continued for a period of time in the auditorium …

Litigation, Reform, And The Opioid Crisis: From Mdl To Bankruptcy, Abbe R. Gluck

Touro Law Review

Can bankruptcy solve a public health crisis? Bankruptcy has taken center stage in complex civil litigation, and the massive opioid litigation is no exception. The U.S. Supreme Court in 2024 decided its first recent case about the intersection of bankruptcy and modern public harms litigation in Harrington v. Purdue Pharma L.P., a decision that brought to the fore pressing questions about the increasing use of bankruptcy in mass torts. In raising concerns about bankruptcy courts being used as a “roving commission to solve all such problems” in complex civil litigation,” the case potentially signals the Court’s growing discomfort with creative …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Voting Matters: Materiality Considerations And The Shareholder Vote, Renee M. Jones

Seattle University Law Review

For the shareholder franchise to have meaning, shareholders must have access to relevant information to inform their voting decisions. The securities laws’ disclosure requirements play an essential role in informing the shareholder vote.

This Essay focuses on the question of the materiality of information in the context of shareholder voting. It addresses the question of whether ESG-related information is material, positioning the materiality inquiry within the context of shareholders’ voting decisions. It explores the definition of materiality with a focus on the “reasonable investor” concept embedded within the definition. The Essay argues that the implicit expectations of many commentators that …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Understanding The Big Three’S Wavering Support Of Environmental And Social Shareholder Proposals, Jeff Schwartz, Jefferson Jensen

Seattle University Law Review

Because of their substantial equity portfolios, BlackRock, Vanguard, and State Street (the Big 3) are central players in corporate governance. It is, therefore, critical to understand how they vote. One puzzle is that their support for shareholder proposals on environmental and social matters appears to waiver. In 2020, for instance, BlackRock supported 11.1% of environmental proposals at S&P 500 firms. In 2021, it seemingly reversed course, supporting 55.2%. It then flipped again, supporting 32.1% in 2022. Such statistics suggest that the Big 3 are constantly changing their views on these topics. This Article seeks to better understand whether this is …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Notice Pleading’S Quiet Return, Alexander A. Reinert

Articles

Fifteen years ago, the Supreme Court announced two significant civil procedure decisions – Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), and Ashcroft v. Iqbal, 556 U.S. 662 (2009). Together, Iqbal and Twombly marked a new approach to pleading in federal courts. No longer would courts apply the forgiving notice pleading standard, in force since the 1938 adoption of the Federal Rules of Civil Procedure. In its place, the Court introduced plausibility pleading, inviting district courts to apply their “judicial experience and common sense” to decide whether a claim was “plausible.” Commentators expressed alarm, predicting that the new standard …

Across The Aggregation-Entity Divide: Personal Jurisdiction, Standing, And The Nature Of The Class Action, Charles Hill

University of Cincinnati Law Review

No abstract provided.

The Private Cause Of Action Under Maine's Unfair Trade Practices Act, Steven A. Shaw

Maine Law Review

In 1970 the Maine Legislature passed the Unfair Trade Practices Act (UTPA) which declared unlawful any "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . ." UTPA-type statutes, now common to all states, offer several advantages. The statutes provide for a statutory award of attorneys' fees, create a private cause of action which is simple in comparison to analogous common law claims, and offer a flexible concept of unlawful conduct which many courts have shown a willingness to interpret broadly and sympathetically. Although Maine's UTPA was originally …

In Defense Of Civil Juries, Peter W. Culley

Maine Law Review

Criticism of the civil jury system is nothing new. In fact, virtually since its inception the civil jury has been embroiled in controversy. Typically critics argue that: the jury cannot handle the complex or technical case; there is great expense and delay attendant to trial by jury; jury adjudication is of low quality; verdicts rendered by different juries in cases involving similar facts often appear inconsistent. Recently, Justice Donald Alexander of the Maine Superior Court stated that "[t]he civil jury system has outlived its usefulness." In support of his basic premise that the civil jury system is merely an historical …

Hanover Insurance Co. V. Hayward: Imposition Of Punitive Damages In Addition To Criminal Sanctions, David P. Silk

Maine Law Review

In Hanover Insurance Co. v. Hayward, the Maine Supreme Judicial Court, sitting as the Law Court, addressed the issue whether punitive damages may be awarded against a defendant who has been criminally convicted for the conduct giving rise to the punitive damages claim. Although it affirmed the superior court's decision not to allow the award of punitive damages, the Law Court concluded that the imposition of criminal sanctions did not by itself bar punitive damages. Instead, the court indicated that criminal punishment is merely one factor to consider in determining whether an award of punitive damages would serve a meaningful …

Tuttle V. Raymond: Drawing The Line On Punitive Damages, Elting H. Smith

Maine Law Review

In Tuttle v. Raymond, the Maine Supreme Judicial Court, sitting as the Law Court, reconsidered the appropriateness of Maine's common law doctrine of punitive damages. Under the doctrine, punitive or exemplary awards are permitted in tort actions, at the factfinder's discretion, for the purpose of deterring wrongful conduct. Prior to Tuttle, a plaintiff raised a claim for such an award if he proved by a preponderance of the evidence that the defendant was guilty of intentional, wanton, malicious, reckless, or grossly negligent behavior. Because of the doctrine's uncertain justification and vague standards, however, punitive damages had become the subject of …

Beyond The Equity Power Of Bankruptcy Courts: Toxic Tort Liabilities In Chapter 11 Cases, Kaighn Smith

Maine Law Review

In 1982, three asbestos product manufacturers filed voluntary petitions for business reorganization under Chapter 11 of the United States Bankruptcy Code. The common reason for each of these filings was that tort liabilities threatened the financial survival of the corporation. Never, in the history of United States bankruptcy law, had any business sought bankruptcy relief for such a reason. By 1985, two more firms, another asbestos product manufacturer and a pharmaceutical company, filed Chapter 11 petitions for the same reason. The torts of these "debtors" in bankruptcy are similar; they extend from the manufacture and wide-spread marketing of products that …