Litigation Commons^™

Double Jeopardy

Touro Law Review

No abstract provided.

Double Jeopardy Supreme Court Appellate Division Second Department

Touro Law Review

No abstract provided.

Double Jeopardy

Touro Law Review

No abstract provided.

State Standing For Nationwide Injunctions Against The Federal Government, Jonathan R. Nash

Notre Dame Law Review

Recent years have seen a substantial increase of cases in which states seek, and indeed obtain, nationwide injunctions against the federal government. These cases implicate two complicated questions: first, when a state has standing to sue the federal government, and second, when a nationwide injunction is a proper form of relief. For their part, scholars have mostly addressed these questions separately. In this Essay, I analyze the two questions together. Along the way, I identify drawbacks and benefits of nationwide injunctions, as well as settings where nationwide injunctions may be desirable and undesirable. I present arguments that, although I do …

An Organizational Account Of State Standing, Katherine M. Crocker

Notre Dame Law Review

Again and again in regard to recent high-profile disputes, the legal community has tied itself in knots over questions about when state plaintiffs should have standing to sue in federal court, especially in cases where they seek to sue federal-government defendants. Lawsuits challenging everything from the Bush administration’s environmental policies to the Obama administration’s immigration actions to the Trump administration’s travel bans have become mired in tricky and technical questions about whether state plaintiffs belonged in federal court.

Should state standing cause so much controversy and confusion? This Essay argues that state plaintiffs are far more like at least one …

The Private Rights Of Public Governments, Seth Davis

Notre Dame Law Review

This Essay charts the analytical and doctrinal confusion arising from the category of “proprietary” interests in state standing law. This category might be taken literally to include only the ownership of property and interests that stem from it. It might refer to interests that are analogous to those that a private corporation might litigate, or instead to any type of financial injury a state might suffer. Other possibilities would limit “proprietary” interests to those interests recognized under the common law, or only those interests recognized under private law. Perhaps the most that can be said is that “proprietary” interests should …

State Standing And Cooperative Federalism, Ernest A. Young

Notre Dame Law Review

State lawsuits challenging federal policy generally encounter arguments that the states lack standing to sue, either under Article III’s “case or controversy” clause or under various prudential standing doctrines. These arguments have often taken novel forms—such as claims that states’ injuries are “self-inflicted” or offset by other benefits of federal policies—that have few precedents or analogs in the standing jurisprudence governing suits by private individuals. The United States has taken the position, in other words, that states should have special disabilities in filing lawsuits that would not apply to ordinary litigants. Likewise, prominent academics have argued that uniquely narrow standing …

Foreword: Some Puzzles Of State Standing, Tara L. Grove

Notre Dame Law Review

When should states have standing? In recent years, there has been an explosion in literature on that question. Yet, even today, there seem to be as many questions as answers. In this Foreword to the Notre Dame Law Review's 2019 Federal Courts, Practice, and Procedure Symposium on state standing, I discuss a few such puzzles. First, should states have “special” standing when they sue the federal government—that is, greater access to federal court than private parties? Second, and conversely, should states have at least “equal” access to federal court, or should they face more barriers than private parties? These …

Standing For Nothing, Robert A. Mikos

Notre Dame Law Review

A growing number of courts and commentators have suggested that states have Article III standing to protect state law. Proponents of such “protective” standing argue that states must be given access to federal court whenever their laws are threatened. Absent such access, they claim, many state laws might prove toothless, thereby undermining the value of the states in our federal system. Furthermore, proponents insist that this form of special solicitude is very limited—that it opens the doors to the federal courthouses a crack but does not swing them wide open. This Essay, however, contests both of these claims, and thus, …

Quasi-Sovereign Standing, F. Andrew Hessick

Notre Dame Law Review

Judges have concluded that states do not have standing based on their quasi-sovereign interests to sue the United States for not obeying the law. Two different reasons have been given. First, because a state can assert quasi-sovereign interests only in its capacity of representing its residents, a state has standing to press those interests only if it can demonstrate that its residents have suffered an injury in fact. On this view, states do not have general standing to sue the federal government for disobeying the law; they have standing only if they can show that the disobedience injured a resident. …

State Standing And National Injunctions, Bradford Mank, Michael E. Solimine

Notre Dame Law Review

Most of the growing literature on national injunctions makes only passing mention, if at all, of states being plaintiffs or of the appropriateness of state standing and how it might bear on the geographic scope of an injunction. This Essay undertakes to fill that gap in a more extended way. Part I of the Essay addresses the issue of state standing in suits against the federal government, and argues that such standing is well grounded in the traditional parens patriae powers of states and should be permitted to protect the health, welfare, and natural resources of their citizens. That is, …

Reining In State Standing, Ann Woolhandler, Michael G. Collins

Notre Dame Law Review

In upholding standing in Massachusetts v. EPA, Justice Stevens said that states “are not normal litigants for the purposes of invoking federal jurisdiction.” While one might agree that the states are not normal litigants, that abnormality might well suggest that states should get standing less easily than private parties.

As a historical matter, states were limited in the kinds of cases they could bring in the federal courts. States typically could not litigate their sovereignty interests (their powers to govern to the exclusion of other governments), nor could they litigate their parens patriae interests (the interests of their citizens) …

State Standing's Uncertain Stakes, Aziz Z. Huq

Notre Dame Law Review

I offer a quite modest contribution to debates on state standing. I do not offer “right answers.” Rather, I posit that it is useful to understand the “stakes” of state standing. By “stakes,” I mean the practical consequences of resolving, one way or another, the unsettled doctrinal choices respecting the ability of states to initiate a matter in federal courts. Why, that is, does state standing matter? An inquiry into stakes can usefully proceed stepwise. A first task is to identify the subset of state standing cases that presently elicit division among the Justices. A second task is to articulate …

O’Neill, Oh O’Neill, Wherefore Art Thou O’Neill: Defining And Cementing The Requirements For Asserting Deliberative Process Privilege, Andrew Scott

Dickinson Law Review (2017-Present)

The government may invoke the deliberative process privilege to protect the communications of government officials involving policy-driven decision-making. The privilege protects communications made before policy makers act upon the policy decision to allow government officials to speak candidly when deciding a course of action without fear of their words being used against them.

This privilege is not absolute and courts recognize the legitimate countervailing interest the public has in transparency. The Supreme Court in United States v. Reynolds held that someone with control over the protected information should personally consider the privilege before asserting it but did not provide definitive …

Remarks On Prosecutorial Discretion And Immigration, Shoba S. Wadhia

Dickinson Law Review (2017-Present)

No abstract provided.

Banning Solitary For Prisoners With Mental Illness: The Blurred Line Between Physical And Psychological Harm, Rosalind Dillon

Northwestern Journal of Law & Social Policy

No abstract provided.

Too Plain To Be Misunderstood: Sovereign Immunity Under The Arkansas Constitution, Robert C. Dalby

Arkansas Law Review

The framers of the constitution certainly knew that instances of hardship would result from the prohibition of suits against the State, but they nevertheless elected to write that immunity into the constitution. The language is too plain to be misunderstood, and it is our duty to give effect to it. Given the fluid nature of the law, time is often the greatest enemy of clarity in court precedent. From law students to experienced judges, anyone who has tried to research the doctrine of sovereign immunity under the Arkansas Constitution has surely struggled with that enemy as they sift through the …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

The Demise Of § 1983 Malicious Prosecution: Separating Tort Law From The Fourth Amendment, Erin E. Mcmannon

Notre Dame Law Review

The common-law tort of malicious prosecution originally developed to provide a remedy for plaintiffs who were unjustly prosecuted in a criminal proceeding. Today, malicious prosecution actions can be brought to redress wrongful civil actions as well. The “central thrust” of an action for malicious prosecution is a right not to be involved in an unjustified litigation.

This Note suggests that the confusion in this area of law derives from the use of the language of malicious prosecution tort law to describe what really amounts to a Fourth Amendment seizure claim under § 1983. There is no constitutional right to be …

Symposium: This Case Is Moot, Jessica Bulman-Pozen, Adam Samaha

Faculty Scholarship

Forget guns for a moment. Imagine that, once upon a time, Boca Raton had a rule that prohibited its residents from transporting their golf clubs to driving ranges outside the city. Boca’s finest golfers challenged the constitutionality of the rule in court. Now imagine that the city thought twice and repealed the rule and that Florida then passed a statute authorizing people to transport their clubs to the driving ranges of their choice. The golfers could live happily ever after.

Winning The Right To Housing : Critical Reflections On A Holistic Approach To Public Interest Litigation, Fay Faraday, Tracy Heffernan, Helen Luu

Articles & Book Chapters

No abstract provided.

An Analysis And Critique Of Mental Health Treatment In American State Prisons And Proposal For Improved Care, Shelby Hayne

Scripps Senior Theses

Mental health treatment in state prisons is revealed to be highly variable, under-funded, and systematically inadequate. Existing literature exposes this injustice but fails to provide a comprehensive proposal for reform. This paper attempts to fill that gap, outlining a cost-effective, evidence-based treatment proposal, directly addressing the deficits in care revealed through analysis of our current system. In addition, this paper provides historical overviews of the prison system and mental health treatment, utilizing theoretical perspectives to contextualize this proposal in the present state of affairs. Lastly, the evidence is provided to emphasize the potential economic and social benefits of improving mental …

Judges Do It Better: Why Judges Can (And Should) Decide Life Or Death, Andrew R. Ford

Dickinson Law Review (2017-Present)

Following its decision in Furman v. Georgia, the Supreme Court of the United States has attempted to standardize procedures that states use to subject offenders to the ultimate penalty. In practice, this attempt at standardization has divided capital sentencing into two distinct parts: the death eligibility decision and the death selection decision. The eligibility decision addresses whether the sentencer may impose the death penalty, while the selection decision determines who among that limited subset of eligible offenders is sentenced to death. In Ring v. Arizona, the Court held for the first time that the Sixth Amendment right to …

State Standing And Cooperative Federalism, Ernest A. Young

Faculty Scholarship

State lawsuits challenging federal policy generally encounter arguments that the states lack standing to sue, either under Article III’s “case or controversy” clause or under various prudential standing doctrines. These arguments have often taken novel forms—such as claims that states’ injuries are “self-inflicted” or offset by other benefits of federal policies—that have few precedents or analogs in the standing jurisprudence governing suits by private individuals. The United States has taken the position, in other words, that states should have special disabilities in filing lawsuits that would not apply to ordinary litigants. Likewise, prominent academics have argued that uniquely narrow standing …

Education Reform And Detroit’S Right To Literacy Litigation, Kristine L. Bowman

Washington and Lee Law Review Online

Ongoing education reform litigation arising out of Detroit, Michigan presents an innovative claim: Children have an unenumerated federal constitutional right of access to literacy. On June 29, 2018, the district court granted defendants’ motion to dismiss. The case is now on appeal to the Sixth Circuit and is expected to be argued in the first half of 2019. This litigation has already broken new ground and, regardless of the ultimate outcome, it is valuable because it invites us to revisit fundamental questions about rights, remedies, and the role of courts in education reform.

The Unconstitutionality Of The Protecting Access To Care Act Of 2017’S Cap On Noneconomic Damages In Medical Malpractice Cases, Kaeleigh P. Christie

Journal of Legislation

No abstract provided.

Rwu First Amendment Blog: David A. Logan's Blog: Infowars Goes To War With The First Amendment 08-15-2018, David A. Logan

Law School Blogs

No abstract provided.

Rwu First Amendment Blog: David Logan's Blog: Discovering Trump 06-22-2018, David A. Logan

Law School Blogs

No abstract provided.

Confronting Silence: The Constitution, Deaf Criminal Defendants, And The Right To Interpretation During Trial, Deirdre M. Smith

Maine Law Review

For most deaf people, interactions with the hearing community in the absence of interpretation or technological assistance consist of communications that are, at most, only partly comprehensible. Criminal proceedings, with the defendant's liberty interest directly at stake, are occasions in which the need for deaf people to have a full understanding of what is said and done around them is most urgent. Ironically, the legal “right to interpretation” has not been clearly defined in either statutory or case law. Although the federal and state constitutions do not provide a separate or lesser set of rights for deaf defendants, their situation …

Rwu First Amendment Blog: David Logan's Blog: Weather Forecast For March 25: Stormy On 60 Minutes? 03-18-2018, David A. Logan

Law School Blogs

No abstract provided.