Litigation Commons^™

Squandering The Last Word: The Misuse Of Reply Affidavits In Summary Judgment Proceedings, Michael D. Moberly, John M. Fry

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Singled Out: Application And Defense Of Antitrust Law And Single Entity Status To Non-Team Sports, Timothy S. Bolen

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

How Chapter 93a Consumers Lost Their Day In Court: One Legislative Option To Level The Playing Field, Matthew S. Furman

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Vacatur Of Foreign Judgments: Options For Collateral Relief In Courts Of Registration, Richard E. Gordon

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Exploring Challenges With The Discovery Of Text Messages In Federal Cases Through The Lens Of The Federal Rules Of Civil Procedure And The Stored Communications Act, 18 U.S.C. Sec. 2701-11, Erin Marie Secord

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

A Critical Survey Of The Law, Ethics, And Economics Of Attorney Contingent Fee Arrangements, Adam Shajnfeld

NYLS Law Review

No abstract provided.

The Quasi-Class Action Method Of Managing Multi-District Litigations: Problems And A Proposal, Charles Silver, Geoffrey P. Miller

Vanderbilt Law Review

This Article uses three recent multi-district litigations ("MDLs") that produced massive settlements-Guidant ($240 million), Vioxx ($4.85 billion), and Zyprexa ($700 million)-to study the emerging quasi-class action approach to MDL management. This approach has four components: (1) judicial selection of lead attorneys, (2) judicial control of lead attorneys' compensation, (3) forced fee transfers from non-lead lawyers to cover lead attorneys' fees, and (4) judicial reduction of non-lead lawyers' fees to save claimants money. These procedures have serious downsides. They make lawyers financially dependent on judges and, therefore, loyal to judges rather than clients. They compromise judges' independence by involving them heavily …

The Economics Of Public Nuisance Law And The New Enforcement Actions, Keith N. Hylton

Faculty Scholarship

In contrast to the traditional legal commentary, I find nuisance law to be a coherent body of rules that serves an explainable function. Nuisance optimally regulates activity levels. Nuisance law induces actors to choose socially optimal activity levels by imposing liability when externalized costs are far in excess of externalized benefits or far in excess of background external costs. The new enforcement actions for lead paint abatement or gun control purposes have an arguable theoretical basis in nuisance law. However, as currently framed, the lawsuits are inconsistent with significant parts of the doctrine and the theory.

Summary Judgment And The Influence Of Federal Rulemaking (Foreword To Symposium: The Future Of Summary Judgment), Bernadette Bollas Genetin

Akron Law Faculty Publications

This essay provides an overview of symposium articles on The Future of Summary Judgment, which were submitted in connection with the Section on Litigation’s program on summary judgment at the 2010 Annual Meeting of the Association of American Law Schools. Contributions to the symposium by Professors Edward Brunet, Stephen Burbank, Jeffrey Cooper, Steven Gensler, and Linda Mullenix, explore issues regarding (1) amendments to Federal Rule 56 that are set to take effect on December 1, 2010; (2) emerging safeguards to prevent improvident grant of summary judgment; (3) the potential of summary judgment to impact interrelated aspects of the pretrial process, …

A Mock Terrorism Application Of The P300-Based Concealed Information Test, John B. Meixner Jr., J. Peter Rosenfeld

Scholarly Works

Previous studies examining the P300-based concealed information test typically tested for mock crime or autobiographical details, but no studies have used this test in a counterterrorism scenario. Subjects in the present study covertly planned a mock terrorist attack on a major city. They were then given three separate blocks of concealed information testing, examining for knowledge of the location, method, and date of the planned terrorist attack, using the Complex Trial Protocol (Rosenfeld et al., 2008). With prior knowledge of the probe items, we detected 12/12 guilty subjects as having knowledge of the planned terrorist attack with no false positives …

Response: Anti-Discrimination Law In Peril?, Trina Jones

Faculty Scholarship

No abstract provided.

Exiting Litigation, Jay Tidmarsh

Journal Articles

The American judicial system will face significant challenges in the twenty-first century. One of its immediate challenges is adapting the rules of civil procedure to the stresses under which the civil-justice system operates. Some of the most notable pressures arise from transnational litigation, mass litigation, proliferation of claims against governmental and corporate institutions, and competition from methods of alternative dispute resolution that promise to dispense cheaper, faster, and more satisfying justice.

Disputing Limited Liability, Christina L. Boyd, David A. Hoffman

Scholarship@WashULaw

This project presents six years of hand-collected federal district court data to analyze the first representative sample of veil piercing litigation. Our method identifies veil piercing complaints through Westlaw's trial pleadings database and codes each case through a detailed examination of PACER records. We test a variety of hypotheses to understand how such litigations are resolved. We find that plaintiffs succeed quite often in veil piercing litigation, if success is defined as winning on motions that do not terminate a case. A variety of legal and extra-legal factors predict such interstitial veil piercing successes. Voluntary creditor causes of action promote …

Issue Preclusion In Complex Litigation, Edward D. Cavanagh

Faculty Publications

(Excerpt)

In an era of multiparty, multijurisdictional, multidistrict litigation, federal cases have grown increasingly complex. As judges struggle to manage complicated cases, a new litigation paradigm has emerged. Rather than attempting to try all cases in one action, federal judges are now breaking the litigation down into smaller pieces, using "fast tracks" or "bellwether" cases, hoping that resolution of one or two cases will lead to settlement of the rest. Inevitably, because the cases involve identical fact issues and identical defendants, the doctrine of prior adjudication comes into play. This Article identifies and analyzes significant issues that arise in the …

Representing Parents In Child Welfare Cases, Vivek Sankaran

Book Chapters

A parent's constitutional right to raise his or her child is one of the most venerated liberty interests safeguarded by the Constitution and the courts.2 The law presumes parents to be fit, and it establishes that they do not need to be model parents to retain custody of their children.3 If the state seeks to interfere with the parent-child relationship, the Constitution mandates that the state: (1) prove parental unfitness, a standard defined by state laws; and (2) follow certain procedures protecting the due process rights of parents. The constitutional framework for child welfare cases is premised on the belief …

Slipping Away From Justice: The Effect Of Attorney Skill On Trial Outcomes, Jennifer B. Shinall

Vanderbilt Law School Faculty Publications

Just how important is a good attorney? Can a skillful attorney actually change the verdict? More importantly, in criminal trials, can a good defense attorney let guilty people go free, or can a good prosecutor send innocent people to jail? Every day, as more highprofile defendants find themselves in court, the anecdotal evidence of this attorney skill effect continues to mount. Yet no one has decisively answered these questions-not only for high-profile defendants, but for the everyday defendant as well. This Note will argue that a skillful defense attorney is not as powerful as popular opinion would lead us to …

A Critical Legal Rhetoric Approach To In Re African-American Slave Descendants Litigation, Lolita Buckner Inniss

Publications

In this paper I apply critical legal rhetoric to the judicial opinion rendered in response to the Defendants' Motion to Dismiss Plaintiffs' Second Amended and Consolidated Complaint in 'In Re African American Slave Descendants', a case concerning the efforts of a group of modern-day descendants of enslaved African-Americans to obtain redress for the harms of slavery. The chief methodological framework for performing critical legal rhetorical analysis comes from the work of Marouf Hasian, Jr. particularly his schema for analysis which he calls substantive units in critical legal rhetoric. Critical legal rhetoric is a potent tool for exposing the …

Tribal Civil Judicial Jurisdiction Over Nonmembers: A Practical Guide For Judges, Sarah Krakoff

Publications

This Article provides a summary of the law of tribal civil jurisdiction over persons who are not members of the governing tribe ("nonmembers'), followed by an analysis of trends in the lower courts. It was written to respond to a consensus view at the University of Colorado Law Review Symposium: "The Next Great Generation of American Indian Law Judges," in January 2010, that a concise, practical, yet in-depth treatment of this subject would be useful to the judiciary as well as practitioners. The Article traces the development of the Supreme Court's common law of tribal civil judicial jurisdiction from 1959 …

Balancing Of Markets, Litigation And Regulation, Keith N. Hylton, Larry E. Ribstein, Paul H. Rubin, Todd J. Zywicki

Faculty Scholarship

In addition to judicial education programs that the Law and Economics Center conducts, we also have a division that focuses on public policy research, known as the Searle Civil Justice Institute. In November, we held a public policy roundtable where we commissioned a variety of research and brought together a group of experts, both academic and practitioner experts, to discuss the issue of balancing the appropriate roles of markets, litigation, and regulation. And the notion there is that each one - markets, litigation, and regulation - can and probably should play a role in addressing various consumer harms.

Blurring The Lines Between Pleading Doctrines: The Enhanced Rule 8(A)(2) Plausibility Pleading Standard Converges With The Heightened Fraud Pleading Standards Under Rule 9(B) And The Pslra, Marc I. Steinberg, Diego E. Gomez-Cornejo

Faculty Journal Articles and Book Chapters

This article focuses on the Supreme Court’s recent enhancement of Rule 8(a)(2)’s pleading standard to approach the heightened fraud pleading standards under Rule 9(b) and the PSLRA. The authors posit that the introduction of a tacit “probability requirement” into the basic pleading standard impedes the heightened fraud pleading standards under Rule 9(b) and the PSLRA from fulfilling the policy rationales for which they were created. By elevating the basic requirements that must be met in any federal civil case for a complaint to be legally sufficient, the Supreme Court has caused an evident convergence of pleading standards that blurs the …

The Anticipation Misconception, Colin P. Marks

Kentucky Law Journal

No abstract provided.

New Options For State Indirect Purchaser Legislation: Protecting The Real Victims Of Antitrust Violations, Robert H. Lande

All Faculty Scholarship

In Illinois Brick v. Illinois Co., the Supreme Court held that, under federal antitrust law, only direct purchasers have standing to sue antitrust violators for damages. Since most products travel through one or more intermediaries before reaching consumers, this decision left most true victims of illegal cartels and other antitrust violations without a remedy to compensate them. Illinois Brick Co. also had the effect of undermining the objective of optimal deterrence of antitrust violations-because direct purchasers often have a suboptimal incentive to sue, the Court's decision often allows violators to escape paying significant damages. For this reason firms are insufficiently …

Piped In: The Tenth Circuit Weighs In On Extending American Pipe Tolling In State Farm Mutual Automobile Insurance Co. V. Boellstorff, Caleb Brown

Oklahoma Law Review

No abstract provided.

Direct Examination: Lawyer As Director, Maureen A. Howard

Articles

A trial lawyer presenting her case in chief through direct examination is somewhat like a film director: the lawyer thoroughly analyzes the case and develops a plan for the most effective way to present the case to the jury to best advance her theme and theory. Just as no script would play out on film the exact same way in the hands of different directors, no case would be presented in exactly the same way by different trial lawyers. Yet there are constants to be found in the steps effective trial lawyers take during their case in chief when presenting …

Rethinking Summary Judgment: Revamp Required?., Mak Mun Luan

Student Works (2010-2019)

Summary judgment has been touted as an effective tool for disposing of litigations in timely and cost effective manners, as disputes between litigants may be resolved without the need of full trials and the usual pre-trial processes associated with civil litigation. However, the tension between the potential for this procedure to produce a final judgment versus the litigants' entitlements to full trials, illustrates how reform in this procedure may be crucial. This paper sought to outline the current laws with regards to summary judgment in Malaysia and explore ways in which it may be revamped. For comparison, summary judgment procedures …

It’S Not A Small World After All: Regulating Obesity Globally, Eloisa Rodriguez-Dod

Faculty Publications

The rate of obesity and overweight among the world population has increased dramatically over the past several years in both adults and children. Childhood obesity is a critical health care concern. There have been well-publicized efforts to regulate children‘s obesity both in the U.S. and abroad through such measures as mandated nutritional school lunch programs.

This article focuses, however, on a less examined area of regulation—the recent worldwide efforts to curb obesity among adults. The regulations discussed in this article include measures proposed or adopted by either administrative agencies or legislative bodies, whether on a local or national level. The …

The Supreme Court's Increased Attention To The Law Of Lawyering: Mere Coincidence Or Something More? , Renee Newman Knake

American University Law Review

The United States Supreme Court considered seventeen cases raising issues related to the role of attorneys and the practice of law during the 2009 Term. This body of cases represents a substantial departure from dockets in recent history, where typically the Court took up less than a handful of cases involving regulation of the legal profession. While some might consider the increased number of cases addressing the law of lawyering a mere coincidence, this article contends that something more is occurring. The Court’s decision to devote so much of its limited time to these matters is noteworthy not only for …

Reading Stoneridge Carefully: A Duty-Based Approach To Reliance And Third Party Liability Under Rule 10b-5, Donald C. Langevoort

Georgetown Law Faculty Publications and Other Works

The Supreme Court's decision in the Stoneridge case has largely been interpreted as a imposing a strict, pro-defendant reliance requirement. This article offers an alternative reading that takes the Court's analysis more seriously than its overheated dicta, one that makes "remoteness" a serious and meaningful inquiry that can produce balanced and fair responses to the concern that seemed to motivate the search for restraint: fear of disproportionate liability. It explores the nature of the dispropotion, and suggests ways--using the Court's own explanatory tools--for deciding when third party involvement is close enough to the fraud so that fear of disproportion lessens. …

The Conscience Of A Prosecutor, David Luban

Georgetown Law Faculty Publications and Other Works

This essay, a version of the 2010 Tabor Lecture at Valparaiso Law School, examines issues about the role of a prosecutor in the adversary system through the lens of the following question: Should a prosecutor throw a case to avoid keeping men who he thinks are innocent in prison? This issue came to prominence in 2008, when Daniel Bibb, a New York City prosecutor, told newspaper reporters that he had done so in connection with a 1991 murder conviction that he had been assigned to reinvestigate after new evidence emerged that the wrong men had been convicted and were serving …

Ghostwriting: Filling In The Gaps Of Pro Se Prisoners' Access To The Courts, Ira P. Robbins

Scholarly Articles in Law Reviews & Journals

Compared with other litigants, pro se prisoners are at an inherent disadvan-tage when they try to vindicate their rights. They lack many of the resources enjoyed by non-prisoner litigants. They have limited finances and limited access to legal-research materials. Even if they had such access, their illiteracy would lessen its effectiveness. Moreover, many attorneys are unwilling or unable to undertake full representation of prisoner litigants. As a result, pro se prisoners struggle to navigate the complex legal system, often losing their cases on procedural grounds before ever reaching a decision on the merits. This Article argues that, in order to …