Litigation Commons^™

Public Relations Litigation, Kishanthi Parella

Scholarly Articles

Conventional wisdom holds that lawsuits harm a corporation’s reputation. So why do corporations and other businesses litigate even when they will likely lose in the court of law and the court of public opinion? One explanation is settlement: some parties file lawsuits not to win but to force the defendant to pay out. But some business litigants defy even this explanation; they do not expect to win the lawsuit or to benefit financially from settlement. What explains their behavior?

The answer is reputation. This Article explains that certain types of litigation can improve a business litigant’s reputation in the eyes …

Demystifying Nationwide Injunctions, Alan M. Trammell

Scholarly Articles

The phenomenon of nationwide injunctions—when a single district court judge completely prevents the government from enforcing a statute, regulation, or policy—has spawned a vigorous debate. A tentative consensus has emerged that an injunction should benefit only the actual plaintiffs to a lawsuit and should not apply to persons who were not parties. These critics root their arguments in various constitutional and structural constraints on federal courts, including due process, judicial hierarchy, and inherent limits on “judicial power.” Demystifying Nationwide Injunctions shows why these arguments fail.

This Article offers one of the few defenses of nationwide injunctions and is grounded in …

The Legal Fate Of Internet Ad-Blocking, Russell A. Miller

Scholarly Articles

Ad-blocking services allow individual users to avoid the obtrusive advertising that both clutters and finances most Internet publishing. Ad-blocking's immense - and growing - popularity suggests the depth of Internet users' frustration with Internet advertising. But its potential to disrupt publishers' traditional Internet revenue model makes ad-blocking one of the most significant recent Internet phenomena. Unsurprisingly, publishers are not inclined to accept ad-blocking without a legal fight. While publishers are threatening suits in the United States, the issues presented by ad-blocking have been extensively litigated in German courts where ad-blocking consistently has triumphed over claims that it represents a form …

The Office Of The Prosecutor: Seeking Justice Or Serving Global Imperialism?, Shannon Fyfe

Scholarly Articles

The international criminal courts and tribunals, especially the ICC, have been strongly criticized for their susceptibility to political influence. Some have argued that the ICC has a distinctly Western bias and is participating in a new kind of imperialism in Africa. Others argue that history and the complicity of the West should disqualify the international community from demanding the prosecution of individuals participating in conflicts resulting directly from colonialism. Many have focused on the nature of the creation of the judicial bodies and the inherent political nature of judicial decisions regarding whom to prosecute. In this article, I offer a …

Expert Report Of Catherine Smith, J.D.: Juliana V. United States, Catherine Smith

Scholarly Articles

The Founders created the architecture for the rights of children to self-determination and protection from the sins of their forebears. A central tenet of our democracy is that government, including these federal defendants, should not deprive children (the next generation) of the foundational elements of their lives, liberties or property and should not impose hardships on them for matters of which they have no control. This historical tradition and intent of the Founders of our nation has not always been realized, but has evolved over time as our society gains new insights and understandings of children and our notions of …

Precedent And Preclusion, Alan M. Trammell

Scholarly Articles

Preclusion rules prevent parties from revisiting matters that they have already litigated. A corollary of that principle is that preclusion usually does not apply to nonparties, who have not yet benefited from their own “day in court.” But precedent works the other way around. Binding precedent applies to litigants in a future case, even those who never had an opportunity to participate in the precedent-creating lawsuit. The doctrines once operated in distinct spheres, but today they often govern the same questions and apply under the same circumstances, yet to achieve opposite ends. Why, then, does due process promise someone a …

Fool Me Twice: Zubik V. Burwell And The Perils Of Judicial Faith In Government Claims, Mark L. Rienzi

Scholarly Articles

This article proceeds in three parts. Part I examines the three government concessions that made the Supreme Court’s Zubik decision possible and how those concessions ultimately revealed that it is possible to protect both contraceptive access and religious liberty. Part II discusses how the circuit courts were brought to emphatically adopt positions the government would ultimately abandon under the slightest pressure. Part III concludes with some key lessons lower courts should take from Zubik to better protect the integrity of both the court system and religious-liberty laws.

Isolating Litigants: A Response To Pamela Bookman, Alan M. Trammell

Scholarly Articles

In a recent article, Litigation Isolationism, Pamela Bookman identifies a phenomenon that similarly changes hue depending on one’s perspective or disposition. Bookman argues that four doctrines (personal jurisdiction, forum non conveniens, abstention comity, and the presumption against extraterritoriality) conspire to make U.S. courts significantly less hospitable to transnational litigation. In Bookman’s assessment, such isolationism is counterproductive because the doctrines often fail to vindicate their stated goals of respecting the separation of powers, international comity, and defendants’ interests. The article is crisp and elegant. It synthesizes disparate areas of law to elucidate a broader development in civil litigation. And it makes …

Brief Of Scholars Of The Constitutional Rights Of Children Susannah W. Pollvogt, Catherine E. Smith, And Tanya Washington As Amici Curiae In Support Of Plaintiffs-Appellants And Reversal: Robicheaux V. Caldwell, Catherine E. Smith, Tanya Washington, Susannah W. Pollvogt

Scholarly Articles

Amici are scholars and professors of family law and the law of equal protection. Amici submit this brief to respond directly to arguments advanced by the State of Louisiana that its laws prohibiting same-sex marriage2 are justified because they advance child welfare. Specifically, the State asserts that its laws advance child welfare by promoting Louisiana’s interest in: (1) linking children with their biological parents to prevent the social stigma associated with being “illegitimate” and (2) establishing the child as a member of an intact family resulting from the marriage of the mother and alleged father. These purported justifications express and …

Transactionalism Costs, Alan M. Trammell

Scholarly Articles

Modern civil litigation is organized around the “transaction or occurrence,” a simple and fluid concept that brings together logically related claims in one lawsuit. It was a brilliant innovation a century ago, but its time has passed. Two inherent defects always lurked within transactionalism, but modern litigation realities have exacerbated them. First, transactionalism represents a crude estimate about the most efficient structure of a lawsuit. Often that estimate turns out to be wrong. Second, the goals of transactionalism are in tension. To function properly, the transactional approach must be simultaneously flexible (when structuring a lawsuit at the beginning of litigation) …

Amicus Brief In United States V. Windsor By Scholars For The Recognition Of Children's Constitutional Rights, Tanya Washington, Catherine Smith, Susannah Pollvogt

Scholarly Articles

This amicus brief filed by Scholars of the Constitutional Rights of Children in Windsor turns the spotlight on children in same-sex families. The brief enumerates the many ways Section 3 of DOMA impairs children's interests by denying federal recognition of their parents' marriages. The brief was cited in Respondent's Brief to the Supreme Court for its central thesis: children are a vulnerable demographic which deserves government action that serves their interests, not government action that impairs their interests.

Against Settlement Of (Some) Patent Cases, Megan M. La Belle

Scholarly Articles

For decades now, there has been a pronounced trend away from adjudication and toward settlement in civil litigation. This settlement phenomenon has spawned a vast critical literature beginning with Owen Fiss’s seminal work, Against Settlement. Fiss opposes settlement because it achieves peace rather than justice, and because settlements often are coerced due to power and resource imbalances between the parties. Other critics have questioned the role that courts play (or ought to play) in settlement proceedings, and have argued that the secondary effects of settlement – especially the lack of decisional law – are damaging to our judicial system. Still, …

Interested, But Not Injured: The Compromised Status Of Qui Tam Plaintiffs Under The Amended False Claims Act And The Return Of The Citizen Suit, A.G. Harmon

Scholarly Articles

No abstract provided.

Standards Of Proof In Civil Litigation: An Experiment From Patent Law, David L. Schwartz, Christopher B. Seaman

Scholarly Articles

Standards of proof are widely assumed to matter in litigation. They operate to allocate the risk of error between litigants, as well as to indicate the relative importance attached to the ultimate decision. But despite their perceived importance, there have been relatively few empirical studies testing jurors’ comprehension and application of standards of proof, particularly in civil litigation. Patent law recently presented an opportunity to assess the potential impact of varying the standard of proof in civil cases. In Microsoft Corp. v. i4i Limited Partnership, the Supreme Court held that a patent’s presumption of validity can only be overcome by …

“Reverse” Patent Declaratory Judgment Actions: A Proposed Solution For Medtronic, Megan M. La Belle

Scholarly Articles

The United States Supreme Court is scheduled to hear arguments in Medtronic, Inc. v. Boston Scientific Corp. – the first patent case of the term – on November 5, 2013. The issue in Medtronic is whether the burden of proof in patent declaratory judgment actions should be on the patent owner to prove infringement or on the accused infringer to prove non-infringement. Ordinarily, the patent owner bears the burden of proving infringement and the declaratory posture of a suit does not shift that burden. In Medtronic, however, the Federal Circuit created an exception for “MedImmune-type” suits, meaning declaratory judgment actions …

Patent Law As Public Law, Megan M. La Belle

Scholarly Articles

Historically, patent litigation has been viewed and treated primarily as private law litigation, as opposed to public law litigation. This paradigm has begun to shift, however, as various stakeholders have come to acknowledge the profound impact that the patent system – and particularly invalid patents – have on the public at large. Yet, in order for a public law regime to succeed, there must be a host of enforcement mechanisms available, including the opportunity for privately-initiated litigation.

Public interest organizations have played a prominent role in the enforcement of certain public rights, such as free speech, equal protection, and environmental …

The Future Of Internet-Related Personal Jurisdiction After Goodyear Dunlap Tires V. Brown And J. Mcintyre V. Nicastro, Megan M. La Belle

Scholarly Articles

For the past two decades, courts have struggled with the question of how Internet-related contacts should be treated in the personal jurisdiction analysis. Some courts have utilized the traditional minimum contacts framework of International Shoe v. Washington , while others have devised new tests to accommodate this technological evolution. So when the US Supreme Court granted certiorari in two personal jurisdiction cases last term— Goodyear Dunlap Tires v. Brown and J. McIntyre v. Nicastro — many believed these unsettled questions of Internet related personal jurisdiction would finally be resolved. Disappointingly for litigants, lower courts, and academics, however, Goodyear and McIntyre …

Quieting Cognitive Bias With Standards For Witness Communications, Melanie D. Wilson

Scholarly Articles

Last year, as part of a project to revise the ABA Criminal Justice Standards for Prosecution and Defense Functions, the ABA Criminal Justice Section initiated roundtable discussions with prosecutors, criminal defense lawyers, and academics throughout the United States. The Standards under review provide aspirational guidance for all criminal law practitioners. This Article stems from the Criminal Justice Section's undertaking. It considers the wording, scope, and propriety of several of the proposed changes that address lawyer-witness communications. It begins with a discussion of the effects of cognitive bias on these communications and explains why carefully tailored Standards may lessen the detrimental …

Bounty Hunters And Whistleblowers: Constitutional Concerns For False Claims Actions After Passage Of The Patient Protection And Affordable Care Act Of 2010, A.G. Harmon

Scholarly Articles

Recently, the False Claims Act (FCA) was amended by the Patient Protection and Affordable Care Act of 2010 (PPACA). In a five-word alteration, the PPACA has greatly expanded the reach of the statute, in terms of how a case must be proven, who has to prove it, and what circumstances, if any, will bar the proceeding from going forward." Additionally, new constitutional and policy concerns stem from the increased governmental discretion in deciding which suits can and cannot proceed.6 The problems resulting from the government's expanded discretion go to the very nature of qui tam actions themselves.

This article will …

Standing To Sue In The Myriad Genetics Case, Megan M. La Belle

Scholarly Articles

In recent years, the topic of gene patents has generated significant debate among medical researchers, biotechnology companies, academics, policymakers, and patent lawyers. The controversy implicates a wide range of legal and policy questions, including whether human genes should be patentable, and whether such patents stimulate or stifle innovation. In Association for Molecular Pathology v. Myriad Genetics, a high-profile case recently before the United States Court of Appeals for the Federal Circuit, a divided panel of the court addressed these questions. Before reaching the merits of the case, however, the court had to decide whether the plaintiffs had standing to sue …

Virtual Contacts In Patent Cases: How Should Internet-Related Contacts Affect The Personal Jurisdiction Analysis?, Megan M. La Belle

Scholarly Articles

In the 1990s, when the Internet was still considered novel, courts struggled with the question of how Internet-related contacts should be treated in the personal jurisdiction analysis. So when Zippo Manufacturing v. Zippo DOT Com established an apparently easy-to-apply test for deciding whether a defendant’s virtual contacts are sufficient for personal jurisdiction, many courts embraced it . To date, however, the Federal Circuit has neither adopted nor rejected the Zippo approach, leaving litigants and lower courts in patent cases with little guidance on the issue. Although a recent decision suggests that the Federal Circuit recognizes the limitations of Zippo, it …

The Catalyst Calamity: Post-Buckhannon Fee-Shifting In Environmental Litigation And A Proposal For Congressional Action, Lucia A. Silecchia

Scholarly Articles

Acknowledging the importance of citizen suits in giving teeth to environmental laws, and recognizing the often prohibitive costs of such litigation, Congress often included fee-shifting provisions in most environmental citizen suit statutes. It is well established that plaintiffs who win a judicial ruling in their favor qualify for the benefits of such fee-shifting. What is less clear is whether those parties whose successes come outside the courtroom - as is often true in the environmental context - can also recover fees. In the past, the so-called “catalyst theory” answered this question affirmatively. However, in 2001, the catalyst theory was dealt …

Comment On Judge Joseph F. Weis, Jr., Service By Mail--Is The Stamp Of Approval From The Hague Convention Always Enough?, Doug Rendleman

Scholarly Articles

No abstract provided.

On-The-Job Training In Appellate Litigation Skills: A Comparative Study, Michael F. Noone Jr.

Scholarly Articles

Each year, hundreds of federal attorneys brief and argue criminal cases before courts of appeal, but the only federally- sponsored training programs in appellate advocacy are devoted primarily to civil appeals. Conversations with members of the staff of the Practicing Law Institute and the Federal -and American Bar Associations established that short courses in appellate litigation skills are not routinely offered. Therefore, we can conclude that most government attorneys involved in criminal appeals learn or improve their appellate litigation skills on the job.

This article is about their training. While there is a wealth of legal literature on appellate advocacy …

The Justice Conundrum, Marshall J. Breger

Scholarly Articles

The litigation explosion threatens to overwhelm the capacity of our judicial institutions to respond adequately to the needs of our society. An understanding of this crisis can be achieved only through the questioning of a number of principles central to our justice system. This essay will explore the contours of these questions and evaluate various responses to the litigation crisis. By their nature, the solutions suggested can be only tentative.

Litigation Primer For Standing Dismissals, John H. Garvey

Scholarly Articles

Professor Carvey examines a very theoretical issue-whether standing objections are jurisdictional, claim-related, or both-to resolve a rery practical problem-hotc to characterize motions to dismiss for lack of standing, As he notes. the choice of characterization under the Federal Rules of Ciril Procedure has important practical consequences for the litigator, involving cridentiary limitations, consolidation requirements, and the resjudcata effcct of dismissal. Professor Carrey suggests. as a solution to the litigator's dilemma, that both rule 12(b k I and rule 121b t16 are appropriate means by which to raise standing objections in the constitutional sense since a determination that the plaintiff lacks …

Attorney’S Affidavit In Litigation Proceedings, John H. Garvey

Scholarly Articles

No abstract provided.