Legal Remedies Commons^™

The Post-Conviction Claim That Unites Death Row, Emily Levy

Arkansas Law Review

“. . . [D]eath-penalty cases are different from other criminal cases, due to the obvious finality of the punishment.” Thirty-one executions have taken place in Arkansas since 1990. In February of 2017, Arkansas, uniquely, sought to execute eight inmates in eleven days—the so-called “Arkansas Eight.” All of those death row inmates shared a common postconviction claim: Strickland. Prior to Strickland v. Washington, no Supreme Court jurisprudence made clear what constituted objectively sufficient defense representation pursuant to the Sixth Amendment. But that changed in 1984 when Strickland made clear that the Sixth Amendment included the right of effective assistance of counsel.

Diligence And Belated Appeals: Ark R. App P.-Civ. 4(B)(3) In Theory And Practice, Johnathan D. Horton

Arkansas Law Review

A series of Arkansas appellate decisions addresses a recurring issue—the entry of a final order without notice to one or more litigants. Appellate deadlines run from the date of entry of a final order, so the lack of notice typically results in the inability to perfect an appeal, as a party unaware of the entry of a final order is unlikely to timely perfect an appeal. This troublesome issue has arisen in Arkansas with sufficient frequency to merit a specific provision in the Arkansas Rules of Appellate Procedure—Civil.4 If a party can satisfy its requirements, Rule 4(b)(3) of the Arkansas …

Sonner V. Premier Nutrition Corp., Ruth Dapper, Bryce Young

Notre Dame Law Review Reflection

When sitting in diversity jurisdiction, must a federal court apply federal equitable principles when deciding state law claims, even if state law may provide a different outcome? That was the question before the United States Court of Appeals for the Ninth Circuit in the case of Sonner v. Premier Nutrition Corp. Although the Ninth Circuit’s published opinion relies on “seventy-five years” of unchanged law, the opinion joins a long list of cases that continue to help clarify the tenets from Erie Railroad Co. v. Tompkins and inform the courts and practitioners on the relationship between state and federal authority …

Equitable Remedies: Protecting "What We Have Coming To Us", Larissa Katz

Notre Dame Law Review

This Article develops a new, doctrinally informed, theoretical account of equitable remedies in terms of our interest in “what we have coming to us”—an interest beyond private law’s commitment to protecting what is already ours, viz., our property rights and our rights to another’s performance of a contract. Through distinctive equitable remedies like specific performance, injunctions, and the remedial constructive trust, equity intervenes to prevent others from obstructing or diverting what a person has coming to her. The need for equity to recognize and to protect an interest in “what we have coming to us” arises, I argue, out of …

Defending "Universal Vacatur" - Nationwide Injunctions For Administrative Law, Michael E. Herz

Online Publications

The nationwide injunction has seized the imagination of courts and law professors in recent years. Not surprisingly, JOTWELL’s pages screens have given it extensive attention. Recent jots have described important work by Samuel Bray (twice), Amanda Frost (also twice), Russell Weaver, and Alan Trammell that attacks, defends, or theorizes nationwide (or “universal”) injunctions. Jack Beermann, in praising Bray and Frost, did have one complaint: “As an administrative law nut, I wish they both grappled more with the meaning of the APA’s instruction that reviewing courts should ‘hold unlawful and set aside’ unlawful agency action.” Mila Sohoni has now filled that …

Collared—A Film Case Study About Insider Trading And Ethics, Garrick Apollon

St. Mary's Journal on Legal Malpractice & Ethics

This Article discusses the visual legal advocacy documentary film, Collared, by Garrick Apollon (author of this Article). Collared premiered in fall 2018 to a sold-out audience at the Hot Docs Cinema in Toronto for the Hot Docs for Continuing Professional Education edutainment initiative. Collared features the story and reveals the testimony of a convicted ex-insider trader who is still struggling with the tragic consequences of “the most prolonged insider trading scheme ever discovered by American and Canadian securities investigators.” The intimate insights shared by former lawyer and reformed white-collar criminal, Joseph Grmovsek, serves as a painful reminder of the …

“Listserv Lawyering”: Definition And Exploration Of Its Utility In Representation Of Consumer Debtors In Bankruptcy And In Law Practice Generally, Josiah M. Daniel Iii

St. Mary's Journal on Legal Malpractice & Ethics

The author examines the communications and activities of bankruptcy lawyers participating in the listserv of the Bankruptcy Law Section of the State Bar of Texas and finds that those activities constitute a previously unrecognized form of “lawyering,” which he has defined as the work of lawyers in and through the legal system to accomplish the objectives of their clients. Review of specific postings about legal issues and practical problems by Texas bankruptcy lawyers, whose practices are primarily on behalf of individual debtors in cases under Chapters 7 and 13 of the Bankruptcy Code, and observations about the voluntary, collaborative, and …

Punishing The Victim: Model Rule 1.16(A)(2) And Its Relation To Lawyers With Anxiety, Depression, And Bipolar Disorder, Daniel G. Esquivel

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

When Mental Health Meets “The One-Armed Man” Defense: How Courts Should Deal With Mccoy Defendants, Farid Seyyedi

St. Mary's Journal on Legal Malpractice & Ethics

The Supreme Court’s opinion in McCoy v. Louisiana held that a defendant has a constitutional right to insist their attorney not concede guilt as to any element of an offense, even if doing so is the only reasonable trial strategy to give the defendant a chance at life imprisonment instead of the death penalty. Under McCoy’s holding, a defendant can insist on maintaining their innocence—even in the face of overwhelming evidence—and force their attorney to pursue a defense that will land them on death row. The Supreme Court’s holding makes clear that a strategic concession of guilt at trial—over …

Ethics In An Echo Chamber: Legal Ethics & The Peremptory Challenge, Kayley A. Viteo

St. Mary's Journal on Legal Malpractice & Ethics

Abstract forthcoming.

Protecting Third Parties In Contracts, Kishanthi Parella

Scholarly Articles

Corporations routinely impose externalities on a broad range of non-shareholders, as illustrated by several unsuccessful lawsuits against corporations involving forced labor, human trafficking, child labor, and environmental harms in global supply chains. Lack of legal accountability subsequently translates into low legal risk for corporate misconduct, which reduces the likelihood of prevention. Corporate misconduct toward non-shareholders arises from a fundamental inconsistency within contract law regarding the status of third parties: On the one hand, we know that it takes a community to contract. Contracting parties often rely on multiple third parties—not signatories to the contract—to play important roles in facilitating exchange, …

Oliver Wendell Holmes's Theory Of Contract Law At The Massachusetts Supreme Judicial Court, Daniel P. O'Gorman

Faculty Scholarship

No abstract provided.

Privacy Losses As Wrongful Gains, Bernard Chao

Sturm College of Law: Faculty Scholarship

Perhaps nowhere has the pace of technology placed more pressure on the law than in the area of data privacy. Huge data breaches fill our headlines. Companies often violate their own privacy policies by selling customer data, or by using the information in ways that fall outside their policy. Yet, even when there is indisputable misconduct, the law generally does not hold these companies accountable. That is because traditional legal claims are poorly suited for handling privacy losses.

Contract claims fail when privacy policies are not considered contractual obligations. Misrepresentation claims cannot succeed when customers never read and rely on …

Systemic Racism And Immigration Detention, Carrie L. Rosenbaum

Seattle University Law Review

The denouement of the Trump presidency was a white supremacist coup attempt against a backdrop of public reawakening to the persistence of institutionalized racism. Though the United States has entered a new administration with a leader that expresses his commitment to ending institutionalized racism, the United States continues to imprison Central American and Mexican immigrants at the southern border. If the majority of the people in immigration jails at the border are Latinx, does immigration law disparately impact them, and do they have a right to equal protection? If they do, would equal protection protect them? This Article explores whether …

Congress And Universal Injunctions, Howard M. Wasserman

Cardozo Law Review de•novo

As the judicial and scholarly debate rages over the power of federal courts to issue universal or non-particularized injunctions, this paper explores the role of Congress in ending this controversy. It considers the details, wisdom, and efficacy of five legislative proposals to eliminate or limit universal/non-particularized injunctions; it concludes that one approach resolves the problem—a flat and unequivocal prohibition on injunctions that protect anyone other than the plaintiffs.

Introductory Remarks, Michael Rogers, Hannah Hamley, Rayshaun D. Williams

Seattle University Law Review

Introductory Remarks.

Marissa Jackson Sow’S “Whiteness As Contract”, Marissa Jackson Sow

Seattle University Law Review

Marissa Jackson Sow’s “Whiteness as Contract.”

Closing Remarks, Dontay Proctor-Mills

Seattle University Law Review

Closing Remarks.

Neither Safe, Nor Legal, Nor Rare: The D.C. Circuit’S Use Of The Doctrine Of Ratification To Shield Agency Action From Appointments Clause Challenges, Damien M. Schiff

Seattle University Law Review

Key to the constitutional design of the federal government is the separation of powers. An important support for that separation is the Appointments Clause, which governs how officers of the United States are installed in their positions. Although the separation of powers generally, and the Appointments Clause specifically, support democratically accountable government, they also protect individual citizens against abusive government power. But without a judicial remedy, such protection is ineffectual—a mere parchment barrier.

Such has become the fate of the Appointments Clause in the D.C. Circuit, thanks to that court’s adoption—and zealous employment—of the rule that agency action, otherwise unconstitutional …

Sexual Harassment In A University Setting: Searching For Justice And Compassion In An Unjust And Indifferent World, Marie Failinger

Faculty Scholarship

The article deals with the question concerning legal responses to sexual harassment – whether those responses should be relentless in punishing and stigmatizing perpetrators and banishing them from positions where they can offend further, or whether there should be room for rehabilitating or even forgiving at least those offenders whose abusive behavior is not violent or serial. On the one hand, the importance of achieving justice and equality for women is critical. On the other hand, one may recognize the possibility of repentance and restoration of both victim and offender to society. The modern restorative justice movement, informed by Christian …

Big Pharma, Big Problems: Covid-19 Heightens Patent-Antitrust Tension Caused By Reverse Payments, Hannah M. Lasting

Seattle University Law Review

In the wake of COVID-19, pharmaceutical companies rushed to produce vaccinations and continue to work on developing treatments, while the tension caused by reverse payments intensifies between patent and antitrust law. Lawmakers must address this tension, and the current pandemic should serve as a catalyst to prompt reform at the legislative level. By amending the Hatch-Waxman Act, lawmakers can ease the increasing strain between patent and antitrust policy concerns. In 2013, the U.S. Supreme Court attempted to resolve this tension in its landmark decision, F.T.C. v. Actavis, but the tension remains as lower courts struggle to produce a uniform standard …

Foreword, Seattle University Law Review

Seattle University Law Review

Foreword.

The Deans' Roundtable, Dean Angela Onwuachi-Willig, Dean Danielle Conway, Dean Tamara Lawson, Dean Mario Barnes, Dean L. Song Richardson

Seattle University Law Review

The Deans' Roundtable.

Victims’ Rights In The Diversion Landscape, Kay L. Levine

Faculty Articles

In this Article, I explore the practical and theoretical conflicts that might surface when the diversion movement and the Victims’ Rights Movement intersect. I focus on two possible sites of tension: victim input into the diversion offer and the victim’s right to receive restitution as a term of diversion. Protocols to give victims greater voice in the justice process have been a mainstay of the burgeoning Victims’ Rights Movement for the past several decades, but I argue that those protocols must be understood within (and thus limited by) the contexts of fiscal responsibility, compassion for the offender, and proportionality in …

Arbitration In The Age Of Covid: Examining Arbitration's Move Online, Amy J. Schmitz

Cardozo Journal of Conflict Resolution

Arbitration has been moving online over time with the growth of the Internet and Online Dispute Resolution ("ODR"), which includes use of technology to assist online negotiation, mediation, arbitration, and variations thereof Online Arbitration ("OArb ") is nonetheless a unique subset of ODR because it usually culminates in a final and binding award by a neutral third party that is enforceable under the Federal Arbitration Act ("FAA"). Indeed, I have written about OArb on prior occasions, due to its unique status under the FAA and other arbitration laws. However, OArb was relatively limited until the COVID-19 pandemic sparked the acceleration …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Tribute To Professor Doug Rendleman, Katy Barnett, Alison Bell, Jeff Berryman, Neil Birkhoff, Daniel Friedmann, Thomas P. Gallanis, Claire Hagan Eller, Brandon Hasbrouck, Corey Hauser, Brant Hellwig, Margaret Howard, Alexandra L. Klein, Douglas Laycock, Benjamin V. Madison, Iii, Judith L. Madison, Kyle Mcnew, Linda Mullenix, Rami Rashmawi, Caprice Roberts, Victoria Shannon Sahani, Joan Shaughnessy, Barry Sullivan, Martha Vazquez, Edilson Vitorelli

Washington and Lee Law Review

A tribute to Professor Doug Rendleman, who served on the faculty of the Washington and Lee University School of Law from 1988 to 2020. Rendleman became Professor of Law, Emeritus in 2020.

Social Justice And The Supreme Court: Lessons From The Past, Vicki Lens

Mitchell Hamline Law Journal of Public Policy and Practice

This article revisits over sixty years of Supreme Court decisions that have affected the poor and racial minorities, using a novel approach that considers the synergistic relationship between different doctrinal areas rather than focusing on one area. Specifically, I appraise the Supreme Court’s doctrinal contributions from 1953 to the present across three foundational elements of social justice on behalf of the poor and people of color: the school integration cases under the Equal Protection Clause, a series of cases under the Fourth Amendment which sanctioned the police tactic of stop-and-frisk, and attempts to secure economic security for the poor through …

Full Faith & Credit For Victims Of Human Trafficking, Joseph Woltmann

University of San Francisco Law Review

No abstract provided.

Client-Centered Communication: How Effective Lawyering Requires Emotional Intelligence, Active Listening, And Client Choice, Heather Heavin, Michaela Keet

Cardozo Journal of Conflict Resolution

For the lawyer-client relationship to work effectively, lawyers need to provide clients with competent, understandable, and relevant legal advice. This proposition is so central to the lawyer's role that it is difficult to challenge. Yet, we suggest, this proposition belies the complexity of the responsibility, given the decision-making process that clients are going through (or should be going through) when deciding to litigate or to settle through negotiation or mediation. The educational literature contains much advice for lawyers on the benefits of dispute resolution processes, how to select and navigate through them, but much less on how lawyers should guide …