Litigation Commons^™

Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Murphy

Faculty Scholarship

This is an article about solving the problem of expensive electronic discovery in litigation by simply learning the most important facts first. Judges and parties often complain that the scope of information included in fact discovery in civil litigation is overinclusive and disproportionate to size of the dispute, resulting in overly expensive costs. The Federal Rules of Civil Procedure recently changed again to further emphasize the use of “proportional” limits in discovery, but provide little practical mechanism for parties, lawyers, and judges to make discovery “right-sized.” This Article proposes that parties should be required to “phase” discovery by first setting …

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.

Front Matter, Jtaa Editors

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Family Law- Letting Go And Stopping The Continuous Cycle Of Litigation: Massachusetts Supreme Judicial And Limited Non-Binding Parent Coordinator Authority In Custody Cases Of Minor Children - Bower V. Bournay-Bower 15 N.E.3d 745 (Mass. 2014), Kimberly T. Aquino

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Preserving The Integrity Of The Arbitration Process: Requiring The Full And Fair Application Of The Claim Preclusion Doctrine, Tiffany J. Johnson

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Resolving Custodial In Custodial Interrogation Pertaining To Miranda Warnings: The Balance Between Individual Rights And Police Effectiveness, Jonathan D. Blanton

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Policing In The Era Of Permissiveness: Mitigating Misconduct Through Third-Party Standing, Julian A. Cook Iii

Brooklyn Law Review

On April 4, 2015, Walter L. Scott was driving his vehicle when he was stopped by Officer Michael T. Slager of the North Charleston, South Carolina, police department for a broken taillight. A dash cam video from the officer’s vehicle showed the two men engaged in what appeared to be a rather routine verbal exchange. Sometime after Slager returned to his vehicle, Scott exited his car and ran away from Slager, prompting the officer to pursue him on foot. After he caught up with Scott in a grassy field near a muffler establishment, a scuffle between the men ensued, purportedly …

The New Governance And The Challenge Of Litigation Bylaws, Jill E. Fisch

Brooklyn Law Review

Corporate governance mechanisms designed to ensure that managers act in shareholders’ interest have evolved dramatically over the past 40 years. “Old governance” mechanisms such as independent directors and performance-based executive compensation have been supplemented by innovations that give shareholders greater input into both the selection of directors and ongoing operational decisions. Issuer boards have responded with tools to limit the exercise of shareholder power both procedurally and substantively. This article terms the adoption and use of these tools, which generally take the form of structural provisions in the corporate charter or bylaws, the “new governance.”

Delaware law has largely taken …

Public Interest Over Private Prejudice? The Public Interest Exception To The Defense Of Laches And The Fourth Circuit's Clean Slate, Christopher A. Mull

Brooklyn Law Review

The trademark cancellation petitions and subsequent appeals surrounding the Washington Redskins’ allegedly disparaging trademarks lay useful groundwork in determining the applicability of the equitable defense of laches in the face of a purported greater public interest. The Lanham Act gives individuals the power to petition to cancel federally registered marks that may be disparaging to a group of individuals, while also permitting trademark holders to assert the equitable defense of laches in the event of unreasonable delay and consequential prejudice. In Pro-Football, Inc. v. Harjo, the District Court for the District of Columbia and the D.C. Circuit held that …

A Brief Survey Of The Treatment Of Electronically Stored Information By Federal Agencies, Richard Dauphinais

University of Baltimore Law Review

Discovery involving electronically stored information (ESI) in federal court litigation has been a matter of extensive discussion in the legal community. Somewhat less examined has been the treatment of ESI by federal agencies. This article takes a look at how some agencies have addressed issues related to ESI. By the late 1990s, federal court practitioners and judges had recognized that the increased use of computers was generating enormous amounts of ESI. The increase in ESI, in turn, affected litigation because it "expanded exponentially" the "universe of discoverable material." Prior to 2006, the federal courts dealt with the discovery of electronic …

Half-Baked: The Demand By For-Profit Businesses For Religious Exemptions From Selling To Same-Sex Couples, James M. Donovan

Loyola of Los Angeles Law Review

Should bakers be required to make cakes for same-sex weddings? This Article unravels the eclectic arguments that are offered in support of a religious exemption from serving gay customers in the wake of Obergefell.

Preliminary issues first consider invocations of a libertarian right to exclude. Rather than being part of our concept of liberty, this right to exclude from commercial premises is a new rule devised to prevent African Americans from participating in free society. Instead of expanding this racist rule to likewise bar gays from the marketplace, it should be reset to the antebellum standard of free access …

Constitutional Law - Shocking Results: Upholding The Prohibition Against The Civilian Possession Of Electrical Weapons - Commonwealth V. Caetano, 26 N.E.3d 688 (Mass. 2015), Vacated And Remanded Sub Nom. Caetano V. Massachusetts, 136 S. Ct. 1027 (2016), Kevin L. Corbin

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Seeing Is Believing: Should Massachusetts Courts Adopt Sjc Recommendations For Eyewitness Testimony, Annabel Rodriguez

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Lawyers, Power, And Strategic Expertise, Colleen F. Shanahan, Anna E. Carpenter, Alyx Mark

Faculty Scholarship

The only sound in a courtroom is the hum of the ventilation system. It feels as if everyone in the room is holding their breath …. Litigants are uneasy in the courthouse, plaintiffs and defendants alike. They fidget. They keep their coats on. They clutch their sheaves of paper-rent receipts and summonses, leases and bills. You can always tell the lawyers, because they claim the front row, take off their jackets, lay out their files. It's not just their ease with the language and the process that sets them apart. They dominate the space.

This empirical study analyzes the experience …

Climate Litigation Scores Successes In The Netherlands And Pakistan, Michael B. Gerrard

Faculty Scholarship

Most U.S. climate change litigation falls into one of two categories. The vast majority of cases — which receive the bulk of the attention — are based on the Clean Air Act and other statutes. These include Massachusetts v. Environmental Protection Agency (2007) and the current litigation over the U.S. Environmental Protection Agency’s (EPA’s) Clean Power Plan. The second category, and the focus of this article, comprises cases based on common law and the Constitution.

Litigation: Time To Revisit Chevron Deference?, Jack M. Beerman, Charles J. Cooper, Thomas W. Merrill, Amy J. Wildermuth, Don R. Willett

Faculty Scholarship

This panel discussion took place on Thursday, November 13, 2014 at the Mayflower Hotel in Washington, D.C., prior to the passing of Justice Antonin Scalia. Justice Scalia's impact on the development of administrative law in the United States is unparalleled.

Nfc Technology Llc V. Htc America, Inc.: Judge Bryson's Sitting-By-Designation Guide To Securing Stays In Light Of Inter Partes Reviews, Jonathan Stroud

American University Law Review

No abstract provided.

Spokeo, Inc. V. Robins: The Illusory “No-Injury Class” Reaches The Supreme Court, Patricia W. Moore

Faculty Articles

The Supreme Court’s grant of certiorari in Spokeo, Inc. v. Robins and three other cases involving class actions in the October 2015 term could be a bad sign for those who think the class action should remain a viable species of private regulation. The grant of certiorari in Spokeo is also a bad sign for those who think Congress should be able to enact statutes regulating businesses’ behavior for the public good—the petitioner, Spokeo, and its army of business amici are urging the Court to cut the legs out from under many such statutes.

Corporate litigation activists such as the …

Rules, Standards, Sentencing, And The Nature Of Law, Russell D. Covey

Faculty Publications By Year

Sentencing law and practice in the United States can be characterized as an argument about rules and standards. Whereas in the decades prior to the 1980s when sentencing was largely a discretionary activity governed only by broad sentencing standards, a sentencing reform movement in the 1980s transformed sentencing practice through the advent of sentencing guidelines and mandatory minimum provisions. As a result, sentencing became far less standard-like and far more rule-like. Although reform proponents believed that this "rulification" of sentencing would reduce unwarranted sentencing disparities and enhance justice, it is far from clear that these goals were achieved. Indeed, the …

Rulemaking's Missing Tier, William Ortman

Law Faculty Research Publications

No abstract provided.

Chilling Effects: Online Surveillance And Wikipedia Use, Jonathon Penney

Articles, Book Chapters, & Popular Press

This article discusses the results of the first empirical study providing evidence of regulatory “chilling effects” of Wikipedia users associated with online government surveillance. The study explores how traffic to Wikipedia articles on topics that raise privacy concerns for Wikipedia users decreased after the widespread publicity about NSA/PRISM surveillance revelations in June 2013. Using an interdisciplinary research design, the study tests the hypothesis, based on chilling effects theory, that traffic to privacy-sensitive Wikipedia articles reduced after the mass surveillance revelations. The Article finds not only a statistically significant immediate decline in traffic for these Wikipedia articles after June 2013, but …

The Just-Barely-Sustainable California Prisoners' Rights Ecosystem, Margo Schlanger

Articles

Over the past two decades, the United States has seen a marked decline in the frequency and depth of court interventions in prisons and jails. Prisoners’ rights litigation has not disappeared—but it has been drastically curtailed by the 1996 Prison Litigation Reform Act (PLRA), along with myriad other forces, doctrinal and political. The PLRA, enacted as part of the Newt Gingrich “Contract with America,” undermined prisoners’ ability to bring, settle, and win lawsuits. (Schlanger 2003; Schlanger 2006)

The resulting impact on jail and prison litigation has been extremely substantial. Significant prisoners’ rights cases certainly remain on court dockets, and new …

Territoriality, Technology, And National Security, Zachary D. Clopton

Cornell Law Faculty Publications

Across various contexts, parties and courts have pressed for territorial rules in cases implicating technology and national security. This Essay suggests that presumptively territorial approaches to these questions are misguided. Territorial rules do not track the division of authority or capacity among the branches, nor are they effective proxies for the important interests of regulators or regulatees. On issues of technology and national security, territorial rules seem particularly ill suited: territorial rules aspire to certainty, but technology makes it harder to define “territoriality” in a consistent and predictable way; technology weakens territoriality as a proxy for policy goals because data …

Alternative Litigation Finance And The Limits Of The Work-Product Doctrine, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

As third-party funding of litigation begins to take hold in the United States, debates about the normative value of such arrangements have heated up among scholars, practitioners, and policymakers. Meanwhile, such arrangements are up and running-providing capital for parties in various cases. As a result, while higher-level debates remain ongoing, courts have had to grapple with on-the-ground issues at the intersection of such funding arrangements and the operation of the Federal Rules of Civil Procedure. In particular, as this essay addresses, courts have begun to deal with the question of whether and to what extent materials created in the course …

The Past, Present, And Future Of Predictive Coding, Matthew G. Kenney

Florida A & M University Law Review

Electronic discovery, or e-discovery, refers to the discovery of electronically stored documents and images.' Examples of e-discovery related documentation would include email, digital versions of paper documents (e.g. MS Word, PDF, Excel, and PowerPoint), social media postings, digital photos, Global Positioning System data, and content within computerized databases, etc. Digital data stored on computers, smartphones, tape drives, hard-drives, portable digital storage devices and the like would fall under the domain of e-discovery. Collecting and sorting massive amounts of electronically stored data presents both opportunities and challenges for lawyers.

For context: In 2015, electronic discovery was a $10.2 billion global industry. …

Expert Prevalence, Persuasion And Price: What Trial Participants Really Think About Experts, Andrew W. Jurs

Indiana Law Journal

By measuring how expert witnesses are actually used in court, this study offers important new data about what makes expert effective and suggests that some commonly held beliefs about experts are misguided. In doing so, the data establishes an important new baseline for measuring expert witnesses in court, updating and expanding on prior research in the field.

Family Law - Interested Person's Lack Of Advocacy Approach Awareness Prompts Motion To Intervene Denial - In Re Guardianship Of B.V.G., 27 N.E.3d 842 (Mass. App. Ct. 2015), Kathryn E. Martin

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Constitutional Law - The Second Amendment With A Rational Bite: Looking For A Heightened Standard Of Review - Chief Of Police Of City Of Worcester V. Holden, 26 N.E.3d 715 (Mass. 2015), Michael F. Grimes

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Peeking Inside The Black Box: A Preliminary Survey Of Technology Assisted Review (Tar) And Predictive Coding Algorithms For Ediscovery, Shannon Brown

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

But-For Nassar, There Would Not Be A Causation Conundrum In Title Vii Retaliation Litigation: How University Of Texas Southwest Medical Center V. Nassar Makes It Harder For Employees To Prevail, Katherine Todd Stark

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.