Litigation Commons^™

Life After Moelis: A Trulia Moment For Governance Claims?, Kyle A. Pinder

Washington and Lee Law Review Online

At the height of the merger-tax litigation bubble, the Delaware Court of Chancery issued its In re Trulia Stockholder Litigation decision, which disincentivized meritless M&A disclosure claims. Similarly, for the past several years, Delaware corporations have faced a wave of facial validity challenges to charter, bylaw, and governance-agreement provisions. Most of these claims end the same way: The corporation amends the challenged provision and pays a mootness fee, often while maintaining that the provision was lawful all along. Two recent Delaware Supreme Court decisions may disrupt that sequence. Kellner v. AIM ImmunoTech Inc. confirmed that a facial validity challenge fails …

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights In Support Of Respondents: St. Mary Catholic Parish V. Roy, Catherine Smith, Tanya Washington, Robin Walker Sterling, Suzette Malveaux, Barbara Bennett Woodhouse, Sara S. Hildebrand, Abigail L. Fleming, Jeremiah Chin

Scholarly Articles

This Court should consider those most directly impacted by the decision in this case: the intended beneficiaries of Colorado’s Universal Preschool Program (“UPK”), Colorado’s children. To paraphrase Shakespeare, though they be but little, they are constitutional rights-bearers and are thus entitled to be free from state-funded discrimination.

Amici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the significant harms children in the LGBT community would bear should Colorado be compelled to allow state-funded religious schools to discriminate against preschoolers. Exempting religious schools from the State’s equal-opportunity and antidiscrimination …

Holding Museums Accountable: Utilizing Criminal Sanctions To Support Repatriation Of Illegally Acquired Cultural Property, Mary Jane Apostle

Washington and Lee Law Review Online

Antiquities trafficking is the third largest form of illegal trade in the world after arms and drugs. In 2020, over 850,000 stolen or looted antiquities were seized worldwide, with the illegal trade growing significantly due to the rise of social media and online platforms. International law, federal agencies, and civil liability have not been successful in curtailing the illegal antiquities trade.

This Note traces New York’s legal evolution from protecting museums that displayed looted artifacts to mandating greater transparency through origin and ownership disclosures. Central to this shift is the creation of the Antiquities Trafficking Unit (ATU) by the Manhattan …

Harmless In Name Only: Prosecutorial Misconduct And The Right To A Fair Trial, Jennifer Brinkman

Washington and Lee Journal of Civil Rights and Social Justice

Prosecutorial misconduct during trial—particularly improper questioning of witnesses and improper argument—occurs in front of the jury and directly shapes its deliberations. Yet appellate courts routinely dismiss such misconduct as “harmless error,” allowing convictions to stand even when prosecutors violate defendants’ rights. This Article contends that the harmless error framework both underestimates the impact of misconduct on jurors and undermines the Constitutional guarantee of a fair trial. It proposes that certain instances of misconduct that occur during trial should be classified as structural error, requiring automatic reversal. This would protect defendants’ right to a fair trial and maintain the integrity of …

Brief Of Amici Curiae Children's Rights Scholars And Advocates In Support Of Appellants' Opening Brief: Lighthiser V. Trump, Abigail L. Fleming, Douglas A. Ruley, Catherine Smith

Scholarly Articles

For decades, constitutional doctrine has recognized that children possess enforceable constitutional rights and that their developmental, physical, and social differences from adults are important considerations in constitutional analysis. Courts may not impute adult capacities, privileges, or political agency to children when determining whether their rights may be vindicated, leaving them no democratic mechanism to alleviate their injuries.

The district court’s dismissal of the youth plaintiffs’ claims rests on precisely that error. Although the court recognized that the children alleged concrete, severe, and escalating harms caused by the challenged executive actions, it concluded that relief must come from the political branches …

Certiorari Transparency, Alexandra L. Klein, Michael L. Smith

Scholarly Articles

Amid increasing controversy over the Supreme Court’s amassing of power, rejection of precedent, reliance on the shadow docket, and Justices’ undisclosed acceptance of lavish gifts, legal scholars, commentators, and politicians have called for bold and far-reaching reforms to the Court, including term limits for Justices, stripping the Court of jurisdiction in certain cases, and adding Justices to the Court. This Article proposes a more subtle reform to the Court’s proceedings: the Court should make its certiorari de-terminations, in which it decides which cases to take up and review, public. Currently, the Court exercises near-complete discretion over the cases it decides …

Leveling The Playing Field? Exploring The Moral Ambiguity Of The Private Attorney General Model, Nathan Heastie

Washington and Lee Law Review Online

Johnson & Johnson’s market cap is twice the GDP of Oklahoma. So, when Oklahoma hauled Johnson & Johnson and other behemoth pharmaceutical companies into state court for their participation in the opioid epidemic, Big Pharma’s resources created a David v. Goliath situation. Against all odds, Oklahoma stood toe-to-toe with Big Pharma and brought home more than $650 million in settlement funds.

Oklahoma’s success would be otherwise impossible without the assistance of three private law firms serving the role of “private attorneys general.” The State signed contingency fee arrangements with the firms, transferring the financial burden of litigation from the State …

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights In Support Of Defendants-Appellants: Roy V. Darren Patterson Christian Academy, Catherine Smith, Tanya M. Washington, Robin Walker Sterling, Jeremiah Chin, Sara S. Hildebrand

Scholarly Articles

Amici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the harms that four-year-olds in the LGBT community – LGBT children and children with LGBT parents – would bear should state-funded religious schools be granted a license to discriminate against them. An exemption to the Colorado Universal Preschool Program’s equal opportunity requirement would allow plaintiffs to discriminate against these children and raise unfair barriers in their paths to a high-quality education. An exemption would also inflict dignitary, psychological, and familial harms upon an entire class of young people – …

The Children’S Lawsuits: Building A Global Movement In Law And Society, Mary Christina Wood

Washington and Lee Law Review

This essay describes the Atmospheric Trust Litigation (ATL) campaign, spearheaded by Our Children’s Trust, consisting of climate cases brought by youth premised on the public trust principle and, later, on express constitutional rights. The essay characterizes the cases as (1) accomplishing a “rights turn” in environmental law by invoking constitutional claims rather than statutory claims that previously marked almost all environmental litigation; (2) establishing a unified global framework of climate responsibility by depicting the planet’s atmosphere as a global public trust asset which all governments have an obligation to protect; and (3) galvanizing a youth climate movement centered on the …

“Small” Voices, Big Wins: Analyzing Remedies In Children’S Climate Cases, Maria Antonia Tigre

Washington and Lee Law Review

Children’s climate litigation has emerged as a powerful tool to address the climate crisis, with young plaintiffs around the world taking governments and corporations to court to demand climate action. This Article examines successful cases—those in which relief sought by the applicants was fully or partially granted—across five continents, providing an “around the world” perspective on the evolution and impact of youth-led climate litigation. Focusing on landmark cases in Australia, Colombia, South Africa, South Korea, and the United States, this analysis highlights the arguments presented by young plaintiffs and the judicial reasoning that supported the relief granted. Through a comparative …

Brief Of Civil Procedure Professors Suzette Malveaux, Alan Trammell, Alexi Pfeffer-Gillett, And Doug Rendleman As Amici Curiae In Support Of Respondents: Trump V. Casa, Trump V. Washington & Trump V. New Jersey, Suzette M. Malveaux, Alan Trammell, Alexi Pfeffer-Gillett, Doug Rendleman

Scholarly Articles

Nationwide injunctions are constitutional. Their core feature—courts’ power to render decisions that directly benefit nonparties—is consistent with traditional equitable practices. Accordingly, the Article III “judicial power” comprehends such remedies. Nationwide injunctions also comport with Article III’s case-or-controversy requirement, including constitutional standing.

Broad remedies are sometimes necessary, especially when government actors willfully disregard people’s rights, and the usual tools of aggregate litigation (such as class actions) are not practically available to vindicate those rights. Moreover, courts can readily navigate prudential concerns about nationwide injunctions, from fears of judge shopping to prematurely freezing the law. Courts remain attuned to these concerns, and …

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights And Students Engaged In Advancing Texas In Support Of Respondents: Mahmoud V. Taylor, Catherine E. Smith, Tanya Washington, Jeremiah Chin, Sarah Medina Camiscoli, Travis F. Chance

Scholarly Articles

Amici are members of Students Engaged in Advancing Texas and United States legal scholars of children and the law, education law, family law, and anti-discrimination law.

Students Engaged in Advancing Texas is a nonprofit organization founded by young people to develop civic leadership and belonging and represents students of various faiths and identities who have an interest in the outcome of this case.

Amici draw this Court’s attention to the constitutional harms that public school students and LGBTQ+ students and students with LGBTQ+ parents would bear should the Court grant Petitioners’ injunctive relief.

Navahine V. Hawai'i Dept. Of Transportation: The Keiki Will Lead Us, Catherine Smith

Scholarly Articles

The author analyzes the landmark case Navahine v. Hawaiʻi Department of Transportation, which culminated in the world’s first constitutional climate settlement. Catherine Smith, serving as an expert for the youth plaintiffs, situates the case within Hawaiʻi’s legal tradition of prioritizing children’s rights and intergenerational equity. She explores the evolution of children’s constitutional protections, contrasting Hawaiʻi’s progressive jurisprudence with the dominant adult-centric legal framework on the mainland. She critiques four recurring analytical missteps in U.S. courts that marginalize children’s interests and highlights Hawaiʻi’s public trust doctrine and cultural values, such as the Aloha Spirit, as models for addressing climate-related harms. …

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 …

New, Derivative: Third-Party Litigation Finance And Derivatives Regulation, Martin Flores

Washington and Lee Law Review Online

Litigation finance is globally abundant and largely unregulated in the United States. The mechanics behind third-party litigation finance are simple: The funder fronts litigation costs in exchange for a promised share of the proceeds if the litigant succeeds. While the normative debate about the value of these contracts in society endures, the litigation finance industry has new players in hedge funds and other opaque investment firms seeking high returns from risky litigation. Many scholars agree on whether to regulate these third-party litigation finance firms. The key debate rages on how to rein in an unbridled industry.

To add to this …

Stitch Incoming: Lindke V. Freed’S Impact On Social-Media-Blocking Litigation, Clare R. Norins, Mark L. Bailey

Washington and Lee Law Review Online

Since at least 2016, social-media-blocking litigation against government officials who censor their online critics has been an evolving battleground for First Amendment rights of free speech and petition. In 2024, the United States Supreme Court issued its first substantive opinion on social media blocking, holding that government officials’ social media activity, even on a personal account, constitutes state action triggering constitutional scrutiny if (1) the official possessed actual authority to speak on the State’s behalf, and (2) purported to exercise that authority when she spoke on social media.

In this Article, we explain the Court’s novel two-part test for determining …

A Jacksonian Theory Of Estoppel In Ip Litigation Against The United States, Leonard C. Brahin

Washington and Lee Law Review Online

As an intellectual property infringer, the federal government occupies a unique position as both the entity that approved the infringed patent or trademark and an entity capable of arguing for its invalidity. By arguing for invalidity, the federal government assumes that it should be exempt from the traditional rules of procedural estoppel. Indeed, the government believes that even though it granted intellectual property rights (after careful research and deliberation and following the express review of an officer appointed with the advice and consent of the Senate), it should have a second bite at the apple to invalidate a patent or …

Leveling The Playing Field For Racial Justice In The Civil Litigation System, Suzette M. Malveaux

Scholarly Articles

Under the weight of the #MeToo movement and severe public pressure, Congress stopped this unseemly practice for a subset of Americans—those challenging sexual assault and harassment. The Ending Forced Arbitration of Sexual Assault and Sexual Harassment Act (EFASASHA), passed in 2022, gives these victims a choice of whether to challenge sexual misconduct in court or in arbitration. Such ubiquitous take-it-or-leave-it contracts are now unenforceable, giving this narrow swath of the population the power to decide for themselves how to challenge such outrageous wrongdoing. In Expanding the Ban on Forced Arbitration, Michael Z. Green argues that race discrimination claims should …

A Major Wrong On A Private Right Of Action Under The Voting Rights Act, Macin Graber, Joshua A. Douglas

Washington and Lee Law Review

In Brnovich v. Democratic National Committee, Justice Neil Gorsuch posited in a short concurrence that Section 2 of the Voting Rights Act (“VRA”) does not confer a private right of action. That idea seemingly came out of nowhere, as Supreme Court precedent was clear and no one had suggested that the VRA did not allow private parties to bring suit. Justice Gorsuch’s one-paragraph concurrence was both unsupported and wrong. Even the single case he cited did not support his proposition.

An Arkansas district court and then the Eighth Circuit, however, followed Justice Gorsuch’s lead, ruling that only the federal Department …

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. …

Guess Who?: First-Time In-Court Identifications And Due Process, Natalie Beers

Washington and Lee Law Review

Juries believe eyewitnesses. When an identifying eyewitness takes the stand and points to a defendant in a courtroom, the jury is more likely to render a guilty verdict. But how reliable is that identification? What if the eyewitness is on the stand identifying a perpetrator for the first time, in the court room, rather than at the police station with a lineup or photo array? How do those suggestive circumstances implicate a criminal defendant’s due process rights?

First-time in-court identifications are inherently suggestive. While the Supreme Court has acknowledged the suggestive nature of similar identifications, it did not directly address …

Amended Expert Disclosure Report: Navahine V. Dept. Of Transportation, State Of Hawai’I, Catherine Smith

Scholarly Articles

From a historical and sociological legal perspective, children in America, including in Hawai'i, require extraordinary legal protection from the harm of climate change and the government actions causing them harm. Hawai'i has a long history and tradition of leading the way on broadening rights and protections under state law, particularly for children. The principles of intergenerational justice and equity at the heart of the public trust doctrine in Hawai'i similarly require that courts accord special attention and protection for children.

On June 20, 2024, the youth-powered Navahine case settled, resulting in the first constitutional climate settlement of its kind in …

Brief Of Amici Curiae Scholars For The Advancement Of Children’S Constitutional Rights In Support Of Defendants-Appellees: St. Mary Catholic Parish V. Roy, Lauren Fontana, Catherine Smith, Tanya M. Washington, Robin Walker Sterling, Suzette Malveaux, Jeremiah Chin, Sara S. Hildebrand

Scholarly Articles

Amici are scholars of children and the law, education law, family law, and anti-discrimination law. Amici draw this Court’s attention to the harms that four-year-olds in the LGBT community – LGBT children and children with LGBT parents – would bear should state-funded religious schools be granted a license to discriminate against them. An exemption to Colorado’s Universal Preschool Program’s equal-opportunity requirement would allow plaintiffs to discriminate against these children and plant unfair barriers in their paths to a high-quality education and inflict dignitary, psychological, and familial harms upon an entire class of young people solely because of their or their …

Amicus Brief Of Children’S Rights Legal Scholars And Advocates As Amici Curiae In Support Of Neither Party: Trump V. Anderson, Catherine Smith, Jeremiah Chin, Philip L. Gregory, Mathew W. Dos Santos, Julia A. Olson

Scholarly Articles

Amici write, not to urge a particular merits outcome to the questions presented, but to advocate for a judicial review process that (1) is true to constitutional text and this Court’s precedent, (2) accounts for non-voting children and future generations who fall within the protections of the counter-majoritarian provisions of the Constitution, and (3) embraces the perpetuity principle over the political question doctrine.

Brief Of Amici Curiae Corporate And Securities Law Experts: Central Maine Power Company V. Maine Commission On Government Ethics And Election Practices, Sarah C. Haan

Scholarly Articles

Amici submit this brief to share expertise on corporate governance and securities laws and practices that relate directly to the lower court’s narrow-tailoring analysis of the Maine statute at the center of this case. While all participating amici may not agree with every statement in the brief, all amici agree that the Act’s 5% equity ownership threshold is not arbitrary and that ownership of 5% or more of a U.S. entity’s equity by a foreign government or a foreign-government-influenced entity presents a foreign influence on the U.S. entity’s governance and decision-making.

Judicial-Ish Efficiency: An Analysis Of Alternative Dispute Resolution Programs In Delaware Superior Court, Jordan Hicks

Washington and Lee Law Review

Since the late twentieth century, federal and state jurisdictions across the United States have explored the use of Alternative Dispute Resolution (“ADR”) programs to resolve legal disputes. ADR programs provide extrajudicial mechanisms through which parties can resolve their disputes without the delay and expense of a traditional judicial proceeding. Courts and practitioners alike have lauded ADR programs. For litigators, ADR programs are a way to deliver outcomes to clients quickly and efficiently. For courts, ADR programs are a way to remove cases from overcrowded dockets.

While ADR is generally considered to be speedier and more cost-efficient than a trial, little …

Resistance Proceduralism: A Prologue To Theorizing Procedural Subordination, Portia Pedro

Washington and Lee Law Review

Several legal scholars have discussed the role of slavery within their own family histories and a growing number of scholars are exploring the successes and strategies of lawyers and Black litigants in freedom suits and other litigation in the United States antebellum South. I build on these literatures with a focus on procedure. In this Article, I analyze procedures involved in a few of my ancestral and personal experiences. Some of the experiences with process involved litigation to be free from slavery while other experiences did not explicitly involve any law. But they all involved process.

Engaging in this practice—marshaling …

Comment: Court Adr Analytics, Benjamin G. Davis

Washington and Lee Law Review

For the reasons in my comments below, Jordan Hicks’s note entitled Judicial-ish Efficiency: An Analysis of Alternative Dispute Resolution Programs in Delaware Superior Court is a tour de force. Its content and methodology suggest a fresh approach to thinking about court-annexed Alternative Dispute Resolution (“ADR”) in general and court-annexed mandatory nonbinding arbitration programs in particular. The meticulous analysis of three different eras (1978–2008, 2008–2018, and 2018–present) of the program, with a focus on judicial efficiency (speed, failure rate, and prejudicial concerns), provides an important template for how this work might be expanded to look at programs in other courts …

Federal Common Law, Climate Torts, And Preclusion, Tom Boss

Washington and Lee Law Review Online

Municipalities have been trying for decades to hold energy companies accountable for their role in the climate change crisis. In an effort to prevent suits, these companies are pushing the novel legal theory that federal common law provides a basis for jurisdiction in federal court over these claims. Once in federal court, the defendants argue that the very federal common law that served as the basis for removal has been displaced by the Clean Air and Clean Water Acts. This would then justify dismissal of the entire case for failure to state a claim. Luckily for the plaintiffs, nearly all …

The Internet, Personal Jurisdiction, And Daos, Matthew R. Mcguire

Washington and Lee Law Review

Global connectivity is at an all-time high, and sovereign state law has not fully caught up with the technological innovations enabling that connectivity. TCP/IP—the communications protocol allowing computers on different networks to speak with each other—wasn’t adopted by ARPANET and the Defense Data Network until January 1983. That’s only forty years ago. And the World Wide Web wasn’t released to the general public until August 1991, less than thirty-five years ago. The first Bitcoin block was mined on January 3, 2009, less than fifteen years ago.

Legal doctrine doesn’t develop that fast, especially in legal systems heavily based around judicial …