Courts Commons^™

Choice Of Law And The Preponderantly Multistate Rule: The Example Of Successor Corporation Products Liability, Diana Sclar

Dickinson Law Review (2017-Present)

Most state rules of substantive law, whether legislative or judicial, ordinarily adjust rights and obligations among local parties with respect to local events. Conventional choice of law methodologies for adjudicating disputes with multistate connections all start from an explicit or implicit assumption of a choice between such locally oriented substantive rules. This article reveals, for the first time, that some state rules of substantive law ordinarily adjust rights and obligations with respect to parties and events connected to more than one state and only occasionally apply to wholly local matters. For these rules I use the term “nominally domestic rules …

Discovery In Federal Courts In Support Of Foreign Litigation: Lending A Helping Hand Or Legal Imperialism?, Edward D. Cavanagh

Faculty Publications

(Excerpt)

For over a century and a half, Congress has authorized the federal courts to assist in the production of evidence for use in foreign tribunals. In 1948, these provisions were codified at 28 U.S.C. § 1782, which currently provides:

The district court of the district in which a person resides or is found may order him to give his testimony or statement or to produce a document or other thing for use in a proceeding in a foreign or international tribunal . . . upon the application of any interested person . . . .”

Historically, invocations for assistance …

All Rise: Suiting Up When Showing Up For The Practice Of Law In The Covid-19 Virtual Legal Environment, Marissa Moran

Publications and Research

The age-old advice: “No matter how you feel, get up, dress up, and show up for work and life!” may be worth remembering as more legal professionals participate in virtual environments due to the COVID-19 mandated court closures.

Virtual court hearings, mediations, and meetings are taking place. Attorneys and legal educators have adapted to changes in how we meet clients and students by utilizing Blackboard Collaborative, Zoom, Cisco WebEx, Microsoft Teams, Google Meet/Hangouts, and Skype. Do such changes in our ways of meeting and communicating-within the virtual environment-bring with them a corresponding change in expectations of what is appropriate attire …

Directors’ Duty Of Care In Times Of Financial Distress Following The Global Epidemic Crisis, Leon Yehuda Anidjar

Brooklyn Journal of International Law

The global COVID-19 pandemic is causing the large-scale end of life and severe human suffering globally. This massive public health crisis created a significant economic crisis and is reflected in a recession of global production and the collapse of confidence in the functions of markets. Corporations and boards of directors around the world are required to design specific strategies to tackle the negative consequences of the crisis. This is especially true for small and medium-sized enterprises (SMEs) that suffered tremendous economic loss, and their continued existence as ongoing concern is under considerable risk. Given these uncertain financial times, this Article …

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.S. Marshals Serv., …

The Remand Power And The Supreme Court's Role, Aaron-Andrew P. Bruhl

Notre Dame Law Review

“Reversed and remanded.” Or “vacated and remanded.” These familiar words, often found at the end of an appellate decision, emphasize that an appellate court’s conclusion that the lower court erred generally does not end the litigation. The power to remand for further proceedings rather than wrap up a case is useful for appellate courts because they may lack the institutional competence to bring the case to a final resolution (as when new factual findings are necessary) or lack an interest in the fact-specific work of applying a newly announced legal standard to the particular circumstances at hand. The modern Supreme …

Court-Packing In 2021: Pathways To Democratic Legitimacy, Richard Mailey

Seattle University Law Review

This Article asks whether the openness to court-packing expressed by a number of Democratic presidential candidates (e.g., Pete Buttigieg) is democratically defensible. More specifically, it asks whether it is possible to break the apparent link between demagogic populism and court-packing, and it examines three possible ways of doing this via Bruce Ackerman’s dualist theory of constitutional moments—a theory which offers the possibility of legitimating problematic pathways to constitutional change on democratic but non-populist grounds. In the end, the Article suggests that an Ackermanian perspective offers just one, extremely limited pathway to democratically legitimate court-packing in 2021: namely, where a Democratic …

Enough Is As Good As A Feast, Noah C. Chauvin

Seattle University Law Review

Ipse Dixit, the podcast on legal scholarship, provides a valuable service to the legal community and particularly to the legal academy. The podcast’s hosts skillfully interview guests about their legal and law-related scholarship, helping those guests communicate their ideas clearly and concisely. In this review essay, I argue that Ipse Dixit has made a major contribution to legal scholarship by demonstrating in its interview episodes that law review articles are neither the only nor the best way of communicating scholarly ideas. This contribution should be considered “scholarship,” because one of the primary goals of scholarship is to communicate new ideas.

Litigating Welfare Rights: Medicaid, Snap, And The Legacy Of The New Property, Andrew Hammond

Northwestern University Law Review

In 2017, the Republican-controlled Congress was poised to make deep cuts to the nation’s two largest anti-poverty programs: Medicaid and the Supplemental Nutrition Assistance Program (SNAP), commonly known as “food stamps.” Yet, despite a unified, GOP-led federal government for the first time in over a decade, those efforts failed. Meanwhile, the Trump Administration and its allies in state government continue to pursue different strategies to roll back entitlements to medical and food assistance. As public interest lawyers challenge these agency actions in federal court, roughly five million Americans’ health insurance and food assistance hang in the balance. This Article asks …

Fee-Shifting Statutes And Compensation For Risk, Maureen Carroll

Indiana Law Journal

A law firm that enters into a contingency arrangement provides the client with more than just its attorneys’ labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state feeshifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation funding. …

A False Sense Of Security: How Congress And The Sec Are Dropping The Ball On Cryptocurrency, Tessa E. Shurr

Dickinson Law Review (2017-Present)

Today, companies use blockchain technology and digital assets for a variety of purposes. This Comment analyzes the digital token. If the Securities and Exchange Commission (SEC) views a digital token as a security, then the issuer of the digital token must comply with the registration and extensive disclosure requirements of federal securities laws.

To determine whether a digital asset is a security, the SEC relies on the test that the Supreme Court established in SEC v. W.J. Howey Co. Rather than enforcing a statute or agency rule, the SEC enforces securities laws by applying the Howey test on a fact-intensive …

The Pandemic Juror, Melanie D. Wilson

Washington and Lee Law Review Online

While the deadly and highly contagious COVID-19 virus lingers and spreads across the country, courts are resuming criminal jury trials. In moving forward, judges reference case backlogs, speedy trial rights, and other concerns for the rights of the accused. Overlooked in this calculus is the importance of jurors and their safety. The Sixth Amendment guarantees “the right to a speedy and public trial, by an impartial jury.” Without jurors, there is no justice.

Even before the COVID-19 pandemic, the justice system sometimes took advantage of juror vulnerability, treating jurors callously, if not rudely, during voir dire by asking them intensely …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Mapping The Iceberg: The Impact Of Data Sources On The Study Of District Courts, Christina L. Boyd, Pauline T. Kim, Margo Schlanger

Articles

Three decades ago, Siegelman and Donohue aptly characterized research about courts and litigation that relied only on published opinions as “studying the iceberg from its tip.” They implored researchers to view published district court opinions “with greater sensitivity to the ways in which such cases are unrepresentative of all cases”. The dynamic, multistage nature of trial court litigation makes a focus solely on published opinions particularly ill-suited to the study of federal district courts. Expanded electronic access to court documents now allows more pre-cise analysis of the ways in which published cases are unrepresentative and what differences that makes for …

United States V. Lozoya: The Turbulence Of Establishing Venue For In-Flight Offenses, Daeja Pemberton

Texas A&M Law Review

The U.S. Constitution protects one’s right to a fair trial in a proper venue. Typically, venue is proper in whatever territorial jurisdiction a defendant commits an offense. But this rule is not as clear-cut when the offense takes place in a special jurisdiction, such as American airspace. A court must then determine whether the offense continued into the venue of arrival, making it proper under the Constitution. This issue was reexamined when Monique Lozoya assaulted another passenger on an airplane during a domestic flight. In United States v. Lozoya, the Ninth Circuit Court of Appeals failed to correctly identify …

In A Class Of Its Own: Bristol-Myers Squibb'S Worrisome Application To Class Actions, Grant Mcleod

Akron Law Review

The Supreme Court’s holding in Bristol-Myers Squibb Co. v. Superior Court has far-reaching implications for federally filed class actions. While the case concerned a mass action in the California state courts, the opinion contained strong dicta to suggest its principles of specific jurisdiction could be applied to federal class—an entirely different procedural tool with its own host of complexities and problems. In the three years following the decision, federal district courts are split on how to apply the Bristol-Myers Squibb analysis to class actions. A distinct category of courts have applied the analysis to dismiss absent class members’ claims when …

Appellate Jurisdiction And The Emoluments Litigation, Adam N. Steinman

Akron Law Review

This article—part of a symposium on federal appellate procedure—addresses questions of appellate jurisdiction that have played an important role in litigation challenging Donald Trump’s conduct under the Constitution’s Emoluments Clauses. When federal trial judges in the District of Columbia and Maryland rejected Trump’s early attempts to dismiss two of these cases, Trump sought immediate relief from the federal courts of appeals rather than allowing the litigation to proceed in the district courts. The lack of a traditional final judgment, however, prompted difficult jurisdictional issues for the D.C. Circuit and the Fourth Circuit.

In both cases, the relationship between appellate mandamus …

Three Ideas For Discretionary Appeals, Bryan Lammon

Akron Law Review

Discretionary appeals currently play a limited role in federal appellate jurisdiction. But reformers have long argued for a larger role. And any wholesale reform of the current appellate-jurisdiction system will likely involve additional or expanded opportunities for discretionary appeals. In this essay, I offer three ideas for the future of discretionary appeals—what form they might take in a reformed system of federal appellate jurisdiction and how we might learn about their function. First, remove any limits on the types of decisions that can be certified for immediate appeal under 28 U.S.C. § 1292(b). Second, give parties one opportunity in a …

The Renaissance Of Permissive Interlocutory Appeals And The Demise Of The Collateral Order Doctrine, Michael E. Solimine

Akron Law Review

Reserving appeals to final judgments has a long history in the federal courts, as do exceptions to that rule. The problem has less been the existence of the exceptions, but rather their scope and application. This article addresses two of those exceptions. One is permissive interlocutory appeals codified in section 1292(b) of the Judicial Code. That exception, requiring the permission of both the trial and appellate courts, has numerous advantages over other exceptions, has been frequently touted as such by the Supreme Court, and has been applied in several recent high-profile cases. In contrast, the collateral order doctrine, an ostensible …

Judicial Disqualification On Appeal, Cassandra Burke Robertson, Gregory Hilbert

Akron Law Review

Adjudication by an impartial decision maker is one of the cornerstones of due process. The interest is so fundamental that constitutional due process guards against even the appearance of partiality, and federal judges are statutorily required to disqualify themselves in any proceeding in which their impartiality “might reasonably be questioned.” Courts and scholars alike have struggled with what it means to “reasonably question” a judge’s impartiality. That question has taken on greater salience in recent years, as deepening partisan divisions have increasingly led parties to express skepticism of judicial neutrality.

When a party files a motion to disqualify a judge …

Signed Opinions, Concurrences, Dissents, And Vote Counts In The U.S. Supreme Court: Boon Or Bane? (A Response To Professors Penrose And Sherry), Joan Steinman

Akron Law Review

Some commentators recently have argued for changes in how United States Supreme Court Justices communicate with everyone except perhaps other Justices of the Supreme Court and the Justices' assistants. Specifically, some commentators have urged that signed opinions and separate opinions, such as concurrences and dissents, stop being published in the official reports. One commentator also has advocated non‑publication of the vote count in Supreme Court decisions. Another has demanded unanimity, as required by due process.

In this piece, I offer my thoughts in response to these proposals.

I argue several reasons to doubt that a prohibition on publication of concurring …

Fixing The Broken System Of Assessing Criminal Appeals For Frivolousness, Andrew S. Pollis

Akron Law Review

This article seeks to end fifty years of confusion over how to proceed when a criminal defendant wants to appeal but appointed counsel sees no basis for doing so.

Practices vary among jurisdictions, but most require counsel to explain the predicament to the court—often at a level of detail that compromises the duty of loyalty to the client. Most also require the court to double-check counsel’s conclusion by conducting its own independent review of the record, thus burdening judges and blurring the important line between judge and advocate. And at no point in this process does the defendant have a …

Protecting The Social Utility Of Appraisal Arbitrage: A Case For Amending Delaware Law To Strengthen The Appraisal Remedy After Dell, Thomas J. Meriam

Brooklyn Law Review

The landscape of M&A litigation in Delaware has undergone a substantial transformation within the last decade. Almost every transaction involving the acquisition of a publicly traded company has attracted stockholder litigation. This note considers Delaware’s attempt to strike the right balance between deterring frivolous litigation and ensuring adequate stockholder protections. In particular, this note considers the social utility of Delaware’s appraisal remedy and the practice of “appraisal arbitrage.” This note puts forth reasons as to why a healthy market of appraisal arbitrage benefits all stockholders: a meaningful threat of appraisal litigation encourages better sales practices in the market for corporate …

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …

The Truthsayer And The Court: Expert Testimony On Credibility, Michael W. Mullane

Maine Law Review

The purpose of this Article is to analyze the admissibility of expert testimony on credibility. State v. Woodburn serves as a lens to focus on the broader issues. The primary issue is an examination of expert testimony on credibility in light of the Federal Rules of Evidence and their progeny. The Rules of Evidence mandate admission or exclusion of expert testimony based on certain criteria. How are these criteria applied to expert testimony on credibility? How should they be applied? The surprising survivability of other criteria discarded by the Rules is also considered.

Trial Handbook For Maine Lawyers, Joel C. Martin

Maine Law Review

Lawyers Cooperative Publishing has issued trial handbooks for practitioners in some twenty-three states. One now appears for Maine lawyers, under the supervision of Bob Stolt of the Maine Bar. Trial Handbook for Maine Lawyers is a single-volume compendium of Maine precedent and practice as they relate to trials. Excluding the discovery matters that precede the trial and the appeal that may follow it, the book focuses on the actual conduct of the trial, from jury selection to verdict and judgment. In between, it covers the necessary matters: opening statements, the order and burden of proof, examination of witnesses, evidence, damages, …

Some Limits On The Judicial Power To Restrict Dissemination Of Discovery, Thomas C. Bradley

Maine Law Review

The pretrial process of discovery governed by Federal and Maine Rule of Civil Procedure 26 enables plaintiffs in product liability actions to delve where few people have delved before—into a corporation's internal memoranda, competitive practices, and secret product or design information as well as other less sensitive information in a company's possession. Discovery, in this context as in others, is a powerful tool determined by the courts to be necessary for the just litigation of claims. As a balance to the leeway given parties to compel production of information in discovery, federal and Maine courts have the authority under Federal …

Brief Amici Curiae On Behalf Of Constitutional Law Professors A.E. Dick Howard, Russell A. Miller, And Carl W. Tobias: Lynchburg Range & Training Llc V. Northam, A.E. Dick Howard, Russell A. Miller, Carl W. Tobias

Scholarly Articles

Through Executive Order No. 53, the Governor of Virginia has acted in a manner consistent with the Constitution of Virginia in temporarily limiting access to indoor, nonessential businesses during the COVID-19 health crisis. Nothing in Article I, § 13 should be read to, nor was intended to, prevent the Governor from taking neutral, commonsense actions to protect the public health in the face of a nationwide pandemic.

Reflections On The Effects Of Federalism On Opioid Policy, Matthew B. Lawrence

Dickinson Law Review (2017-Present)

No abstract provided.

The Opioid Litigation: The Fda Is Mia, Catherine M. Sharkey

Dickinson Law Review (2017-Present)

It is readily agreed that federal preemption of state tort law alters the balance between federal and state power. Federal preemption is a high-profile defense in almost all modern products liability cases. It is thus surprising to see how little attention has been given to federal preemption by courts and commentators in the opioid litigation. Opioid litigation provides a lens through which I explore the role of state and federal courts and the Food and Drug Administration (FDA) in striking the right balance of power. My purpose here is not to resolve the divide among the few courts that have …