Civil Procedure Commons^™

Reconstituting A Constitution, And A Republic: The Architecture Of Authoritarian Rule, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

A constitution can be remade without tearing it down, or even changing a single word. It is done by law.

“The judicial power is vested in one Supreme Court and in such inferior courts as Congress may establish,” whose “province and duty” it is to “say what the law is.” U.S. Const. Art. III §1; Marbury v. Madison, 5 U.S. 1 (Cranch) 137 (1803). It is not the power to remake the Constitution that grants it.

The Supreme Court is turning the inherited powers that hold power to law into instruments of its own aggrandizement. It is taking authority from …

Rethinking Judicial Power & Remedial Restraint, Caprice L. Roberts

Catholic University Law Review

This Article maintains that groundbreaking Supreme Court cases reshaping judicial power and restraint are frequently remedies centric. The much- anticipated ruling in Trump v. CASA illustrates this correlation. Interpreting traditional equity, the Supreme Court circumscribed federal judicial power to issue universal relief. The Court relied on Marbury v. Madison to bolster its reasoning on the limits of judicial power. Ironically, both cases denied any remedy while enhancing the potential for future judicial power. Whether via judicial review and supremacy power or the Court’s future ability to now be the only federal court able to issue universal remedies—the Court’s role in …

27th Annual Open Government Summit: Your Guide To The Access To Public Records Act & Open Meetings Act (Powerpoint Slides) 08-01-2025, Attorney General State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

27th Annual Open Government Summit: Your Guide To The Access To Public Records Act & Open Meetings Act 08-01-2025, Attorney General State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

The Gift Of Public Funds Bogeyman, Noah Purcell, Michelle Saperstein

Washington Law Review

Washington’s “gift of public funds” doctrine is frequently misunderstood in ways that impede innovative ideas aimed at remedying some of our state’s most intractable problems. This doctrine arises from article VIII, sections 5 and 7 of the Washington Constitution, which prohibit state and local governments from gifting assets or loaning credit. While the Washington State Supreme Court historically applied these provisions in restrictive and confusing ways, the Court’s modern jurisprudence recognizes that the doctrine is inapplicable to funding expended for any of the many “fundamental purposes” of government. Even where a government program does not fall under this broad category, …

Maine Civil Remedies By Andrew M. Horton & Peggy L. Mcgehee, Eric R. Herlan

Maine Law Review

If there is any ongoing dispute within the legal community that one could properly characterize as a Great Debate, that dispute concerns the nature and sources of judicial power. Most recently that debate has manifested itself in nuanced and subtle disagreements about how a court ought to interpret enacted law, whether found in statutes or written constitutions. That argument about judicial interpretation, and more precisely about the philosophical possibility of correct textual interpretations, is itself simply a more scholarly manifestation of an earlier dispute over whether judges should "legislate" when they resolve difficult legal issues, or should instead constrain themselves …

The Scope Of Election Litigation, Michael T. Morley

Washington and Lee Law Review

One way to think about the “scope” of a case is based on the range of parties who are—or must be—involved in it. The broader a case’s scope in this regard, the more burdensome and costly it can be for plaintiffs to file and the more complicated and time-consuming it may be for a court to adjudicate. Requiring large numbers of parties to be involved in a case can sometimes effectively preclude otherwise meritorious suits from being filed. This is especially true in election law disputes which often arise under harried circumstances and can be subject to strict time constraints. …

Fee Shifting, Nominal Damages, And The Public Interest, Maureen Carroll

Law & Economics Working Papers

As the Supreme Court recognized in its 2021 decision in Uzuegbunam v. Preczewski, nominal damages can redress violations of “important, but not easily quantifiable, nonpecuniary rights.” For some plaintiffs who establish a violation of their constitutional rights, nominal damages will be the only relief available. In its 1992 decision in Farrar v. Hobby, however, the Court disparaged the nominal-damages remedy. The case involved the interpretation of federal fee-shifting statutes, which enable prevailing civil rights plaintiffs to recover a reasonable attorney’s fee from the defendant. According to Farrar, a plaintiff can prevail by obtaining the “technical” remedy of nominal damages, but …

Office Of Attorney General Peter F. Neronha, Attorney General: Access To Public Records Act, Open Meetings Act, Attorney General, State Of Rhode Island, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

25th Annual Open Government Summit: Your Guide To The Access To Public Records Act & Open Meetings Act, Peter F. Neronha, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Preliminary Injunctions In Public Law: The Merits, Kevin J. Lynch

Sturm College of Law: Faculty Scholarship

The law of preliminary injunctions has been evolving, in many instances away from its roots in equity and towards a more rigid and formalistic approach that raises the bar for when a preliminary injunction may be granted. This change has its roots in hostility at the Supreme Court to certain types of rights, such as abortion, voting rights, public health, and environmental protection, to name a few. In the aftermath of the Supreme Court’s 2009 decision in Winter v. Natural Resources Defense Council, a few circuits have adopted a strict, literal reading of some dicta from that case in order …

Fixing "Litigating The Fix", Steven C. Salop, Jennifer E. Sturiale

Georgetown Law Faculty Publications and Other Works

Merging firms have increasingly been asking trial courts to adjudicate their merger “as remedied” by a voluntary “fix.” These are remedies that have been rejected by (or never proposed to) the agency. This procedure is known as Litigating-the-Fix” (“LTF”). This article proposes a judicial procedure for managing cases in which the merging parties attempt to LTF. Our recommendations flow from a decision theory approach informed by the relevant LTF case law, the merger enforcement record, the language and goals of Section 7, and an economic analysis of the incentives of the parties and agencies created by LTF. Our recommendation addresses …

24th Annual Open Government Summit 2022, Roger Williams University School Of Law, Rhode Island Office Of The Attorney General

School of Law Conferences, Lectures & Events

No abstract provided.

23rd Annual Open Government Summit: Access To Public Records Act, Open Meetings Act Powerpoint Presentation 07-30-2021, Office Of Attorney General State Of Rhode Island, Peter F. Neronha

School of Law Conferences, Lectures & Events

No abstract provided.

Toward A More Democratic America, Thomas Kleven

Seattle Journal for Social Justice

No abstract provided.

Preclusion Law As A Model For National Injunctions, Suzette M. Malveaux

Publications

No abstract provided.

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.

Class Actions, Civil Rights, And The National Injunction, Suzette M. Malveaux

Publications

This essay is a response to Professor Samuel Bray’s article proposing a blanket prohibition against injunctions that enjoin a defendant’s conduct with respect to nonparties. He argues that national injunctions are illegitimate under Article III and traditional equity and result in a number of difficulties.

This Response argues, from a normative lens, that Bray’s proposed ban on national injunctions should be rejected. Such a bright-line rule against national injunctions is too blunt an instrument to address the complexity of our tripartite system of government, our pluralistic society and our democracy. Although national injunctions may be imperfect and crude forms of …

"Hacking" Service Of Process: Using Social Media To Provide Constitutionally Sufficient Notice Of Process, Angela Upchurch

University of Arkansas at Little Rock Law Review

No abstract provided.

Who Is Responsible For The Stealth Assault On Civil Rights?, Samuel R. Bagenstos

Michigan Law Review

Staszak’s book does a great service in demonstrating the extent of the stealth assault on civil-rights litigation. As Staszak shows, procedural and remedial decisions fly under the public’s radar, but they have exceptionally important consequences. Indeed, one can draw a clear line between judicial decisions on such obscure topics as standing and qualified immunity and the persistent acts of police misconduct that have aroused great public concern in recent months. Any effort to ensure that civil-rights protections make a concrete difference in people’s lives must attend to the procedural and remedial issues Staszak discusses.

Class Action Myopia, Maureen Carroll

Articles

Over the past two decades, courts and commentators have often treated the class action as though it were a monolith, limiting their analysis to the particular class form that joins together a large number of claims for monetary relief This Article argues that the myopic focus on the aggregated-damages class action has led to undertheorization of the other class-action subtypes, which serve far different purposes and have far different effects, and has allowed the ongoing backlash against the aggregated-damages class action to affect the other subtypes in an undifferentiated manner. The failure to confine this backlash to its intended target …

Trademark's Ebay Problem, Peter J. Karol

Law Faculty Scholarship

This article explores the upheaval created within trademark law by eBay, Inc. v. MercExchange, L.L.C., asking why a simple doctrinal question (Should a patent remedies rule be extended to trademark cases?) has posed such problems for the courts. After a thorough review of past and present trademark injunction practice, and the Lanham Act’s legislative history, it finds that trademark law’s inability to assimilate eBay stems from unresolved substantive conflicts in the underlying legislation itself. In short, because the drafters could not settle on the proper scope of a federal trademark right, they hedged by granting a national exclusive right limited …

A Further Note On Federal Causes Of Action, John F. Preis

Law Faculty Publications

In the article, I argue that federal causes of action ought to be treated as (1) distinct from substantive rights, (2) synonymous with the availability of a remedy (but not whether a remedy will in fact issue) and (3) distinct from subject matter jurisdiction (unless Congress instructs otherwise). This thesis is built principally on a historical recounting of the cause of action from eighteenth century England to twenty-first century America. In taking an historical approach, I did not mean to argue that federal courts are bound to adhere to centuries-old conceptions of the cause of action. I merely used history …

Saving Charitable Settlements, Christine P. Bartholomew

Journal Articles

This Article defies the conventional wisdom that all charitable distributions from a class action settlement fund are types of cy pres. Instead, it proposes a radical delineation between “cy pres remainders” (meaning settlement funds left over after individual monetary distributions) and “charitable settlements” (meaning money initially distributed to charities as part of class action settlements). While both have cy pres roots, these two settlement structures have been conflated, jeopardizing the potential utility of charitable settlements. After articulating more precise nomenclature for these distinct distribution methods, this Article justifies why we must preserve charitable settlements. This defense is particularly timely, as …

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.

Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell

Faculty Scholarship

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real …

Punitive Damages And The Drunken Driver, William C. Cooper

Pepperdine Law Review

A discussion of the history and theory of punitive damages which results in advocating their application in a drunk driving context after giving due consideration to the pros and cons of such a sanction. An analysis of case law will reveal the underlying rationale that has motivated certain jurisdictions in applying this severe penal approach in an attempt to deter and curtail the senseless destruction on our nation's highways as well as exploring the impetus behind those other jurisdictions that do not utilize the remedy of punitive damages. The culminating focus is on California's position in this regard. Finally, there …

The Supreme Court Continues Its Journey Down The Ever Narrowing Paths Of Section 1983 And The Due Process Clause: An Analysis Of Parratt V. Taylor, Robert E. Palmer

Pepperdine Law Review

After nearly a century of quiet slumber, the Supreme Court awoke the sleeping giant. In the past two decades, 42 U.S.C. §1983 has evolved into a judicial Frankenstein monster. Unable to control the beast, the Court has attempted to restrict the creature's movements by unnecessarily limiting its constitutional source. If followed to its logical conclusion, the Court's narrow reading of the Constitution may ultimately demote all due process violations to state tort remedies. This note traces the legislative and judicial evolution of section 1983 as well as the statute's present interaction with the due process clause. The vehicle for this …

States Escape Liability For Copyright Infringement?, Michelle V. Francis

Pepperdine Law Review

No abstract provided.

Cooperative Agreements: Government-To-Government Relations To Foster Reservation Business Development, Joel H. Mack, Gwyn Goodson Timms

Pepperdine Law Review

No abstract provided.