Litigation Commons^™

Judicial And Practitioner Perspectives On Adr, Young Hye Chun

Pepperdine Dispute Resolution Law Journal

No abstract provided.

Shelby County And Local Governments: A Case Study Of Local Texas Governments Diluting Minority Votes, Sydnee Fielkow

Northwestern Journal of Law & Social Policy

No abstract provided.

Brief Of Brian Wolfman, Aderson B. Francois, And Eric Schnapper As Amici Curiae In Support Of Petitioner In Peterson V. Linear Controls Incorporated, No. 18-1401 (U.S. Supreme Court June 6, 2019), Brian Wolfman, Aderson B. François

U.S. Supreme Court Briefs

In Title VII disparate-treatment, employment-discrimination cases, the term “adverse employment action” originally developed as judicial shorthand for the statute’s text, which broadly prohibits any discriminatory conduct by an employer against an employee based on the employee's race, color, religion, sex, or national origin. See 42 U.S.C. 2000e-2(a)(1). But what started simply as shorthand has taken on a life of its own and now improperly limits the statute’s reach. The Fifth Circuit’s version of the adverse-employment-action rule stands out as especially improper: Only an “ultimate employment decision”—a refusal to hire, a firing, a demotion, or the like—constitutes impermissible discrimination.

In this …

Probate Funding And The Litigation Funding Debate, Jeremy Kidd

Washington and Lee Law Review

Third-party funding of legal claims is becoming more common, and increasingly more controversial. Whether in the legislative arena or in the courts, the fight over whether and how independent parties might provide funding to litigants has become heated. The fight now threatens to spill over into the probate realm, where funders have begun purchasing probate rights from putative heirs. These probate funding transactions share many characteristics with broader litigation funding but also differ in important respects. The meager existing literature tends to address the issue in a pre-biased and methodologically unsound way, making it impossible to properly assess the nature …

A Rhetorical Analysis Of Opening Statements In Trial: Reconsidering The Classical Canon Of Invention, Andrew Chandler

Undergraduate Theses

This analysis of 21 opening statements probes at current persuasive practices employed by trial attorneys through the lens of mainstream legal advice and an expanded definition of rhetorical invention – one which includes both discovery and creation. An evaluation of such practice reveals the utility, and furthermore the duty of the advocate, to draw upon an expanded realm of available arguments.

Are Interlocutory Qualified Immunity Appeals Lawful?, Michael E. Solimine

Notre Dame Law Review Reflection

For half a century the Supreme Court has held that defendants in civil rights actions can avoid monetary liability if they demonstrate a qualified immunity for their actions. And for thirty years, the Court has held that district court denials of the qualified immunity defense are immediately appealable under the collateral order exception to the final order requirement. Controversial from the start, the qualified immunity defense has recently come under renewed stress, with calls from individual Justices and by leading voices in academia to either significantly modify or even abolish the defense. While primarily dealing with substantive aspects of the …

Public Relations Litigation, Kishanthi Parella

Vanderbilt Law Review

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 …

Department Of Insurance, Sarah Marie Burgh, Joseph Cheng, Debra Jorgensen

California Regulatory Law Reporter

No abstract provided.

Bureau Of Cannabis Control, Nicole Cohen, Guinness Castello, R. C. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Under Coyote’S Mask: Environmental Law, Indigenous Identity, And #Nodapl, Danielle Delaney

Michigan Journal of Race and Law

This Article studies the relationship between the three main lawsuits filed by the Standing Rock Sioux Tribe, the Cheyenne River Sioux Tribe, and the Yankton Sioux Tribe against the Dakota Access Pipeline (DaPL) and the mass protests launched from the Sacred Stone and Oceti Sakowin protest camps. The use of environmental law as the primary legal mechanism to challenge the construction of the pipeline distorted the indigenous demand for justice as U.S. federal law is incapable of seeing the full depth of the indigenous worldview supporting their challenge. Indigenous activists constantly re-centered the direct actions and protests within indigenous culture …

Can A State’S Water Rights Be Dammed? Environmental Flows And Federal Dams In The Supreme Court, Reed D. Benson

Michigan Journal of Environmental & Administrative Law

Interstate rivers are subject to the doctrine of equitable apportionment, whereby the Supreme Court seeks to ensure that all states that share such rivers get a fair portion of their benefits. The Court has rarely issued an equitable apportionment decree, however, and there is little law on whether the doctrine protects river flows for environmental purposes. The ongoing Florida v. Georgia litigation in the Supreme Court raises this issue, as Florida seeks to limit consumptive uses by upstream Georgia to preserve flows in the Apalachicola River, which provide both economic and environmental benefits. This Article summarizes both the equitable apportionment …

The Policy Implications Of Third-Party Funding In Investor-State Dispute Settlement, Brooke Guven, Lise Johnson

Columbia Center on Sustainable Investment Staff Publications

In this Working Paper, CCSI analyzes underexplored yet critical policy issues surrounding the use of third-party funding in ISDS. It considers the costs and benefits of the practice, asks whether it is desirable or undesirable that third-parties be permitted to invest in ISDS claims, and if so, under what circumstances and in order to achieve what objectives, and overviews policy responses, including a total or partial ban and various regulatory responses, that may be appropriate to manage identified impacts.

The Arbitration-Litigation Paradox, Pamela K. Bookman

Vanderbilt Law Review

The Supreme Court's interpretation of the Federal Arbitration Act is universally touted as favoring arbitration. Its arbitration cases and decisions in other areas are also viewed as supporting the Court's more general hostility to litigation. These pro-arbitration and anti-litigation policies can be mutually reinforcing. Moreover, they appear to be mutually consistent, in part because the Court describes the essential features of arbitration as being "informal," "speedy," "efficient"-in short, the categorical opposite of litigation.

This Article contends that the Court's approach is not as "pro- arbitration" as it appears. On the contrary, the Court's pro-arbitration and anti- litigation values sometimes conflict. …

Offshore Drilling: Combating Regulatory Uncertainty With Contract Law Protection, Jordan M. Steele

Brooklyn Journal of Corporate, Financial & Commercial Law

Offshore drilling accounts for billions of dollars in tax revenue every year. It is a pillar of the energy industry and is crucial to the economy. A recent flurry of deregulation, accelerating with the arrival of the Trump administration, highlights the tremendous impact politics has upon the profitability of this sector. The Secretary of the Interior, under the direction of the President, wields the power to regulate and make determinations into where, when, and how private companies can drill offshore. These private companies have contracts with the government for the opportunity to produce and develop oil or gas on the …

Mandatory Arbitration And Sexual Harassment Claims: #Metoo- And Time's Up-Inspired Action Against The Federal Arbitration Act, Kathleen Mccullough

Fordham Law Review

The rise of the #MeToo movement and Time’s Up campaign has brought the issue of sexual harassment into the national spotlight. Equal Employment Opportunity Commission filings for sexual harassment claims have increased 13 percent since the start of the #MeToo movement, and a little over a year since its creation on January 1, 2018, the Time’s Up Legal Defense Fund has received 4139 requests for representation in sexual harassment claims. However, the U.S. Supreme Court has interpreted the Federal Arbitration Act to enforce mandatory arbitration clauses for employment claims, including sexual harassment claims—an interpretation that prohibits employees from pursuing litigation …

The Sue-And-Settle Phenomenon: Its Impact On The Law, Agency, And Society, Katie L. Colton

All Graduate Theses and Dissertations, Spring 1920 to Summer 2023

Sue-and-settle is the name applied to a federal agency’s use of litigation to create policy outside of the normal regulatory process. This paper discusses the impact that the sue-and-settle policy has had on Congress, the judiciary, and the Environmental Protection Agency. Specifically, this paper will discuss the issues caused by the perception of collusion within the sue-and-settle policy. First, this paper examines whether a relationship occurs between the litigants. The paper then discusses whether the relationship between the litigants in sue-and-settle cases tends to be collusive or not. The second part of the paper examines how Congress, the Environmental Protection …

Save Our Sound Obx, Inc. V. North Carolina Department Of Transportation, Mitch L. Werbell V

Public Land & Resources Law Review

The Fourth Circuit Court of Appeals recently ruled in favor of several governmental agencies seeking to construct a new bridge in the Pamlico Sound adjacent to North Carolina’s Outer Banks. For years, state and federal agencies have put forth a massive coordinated effort to address the constant weather damage and erosion which occurs to a section of North Carolina Highway 12. The court found the agencies properly cleared NEPA’s environmental review requirements for the bridge’s construction. Additionally, the opponent-litigants’ efforts to add claims challenging the project, based on new information about a shipwreck in the bridge’s path, were futile.

A Computational Analysis Of Oral Argument In The Supreme Court, Gregory M. Dickinson

Cornell Journal of Law and Public Policy

As the first study to leverage modem machine learning techniques to analyze Supreme Court oral argument dialogue, this Article breaks important new ground. Previous empirical studies of oral argument and judicial decision making have been limited to a small number of discrete, quantifiable attributes, many of them external to oral argument. Past work has examined, for instance, the strength of the connection between the Justices' votes and their ideological preferences; variation in the Justices' votes based on the legal subject matter at issue; and the Justices' tendency to ask more and longer questions to the parties they ultimately vote against. …

States Empowering Plaintiff Cities, Eli Savit

University of Michigan Journal of Law Reform

Across the country, cities are becoming major players in plaintiff’s-side litigation. With increasing frequency, cities, counties, and other municipalities are filing lawsuits to vindicate the public interest. Cities’ aggressive use of lawsuits, however, has been met with some skepticism from both scholars and states. At times, states have taken action—both legislative and via litigation—to preempt city-initiated suits.

This Article contends that states should welcome city-initiated public-interest lawsuits. Such litigation, this Article demonstrates, vindicates the principles of local control that cities exist to facilitate. What is more, a motivated plaintiff city can accomplish public-policy goals that are important not just to …

Non-Physician Vs. Physician: Cross-Disciplinary Expert Testimony In Medical Negligence Litigation, Marc D. Ginsberg

Georgia State University Law Review

The source of the applicable standard of care in a specific medical negligence claim is multifaceted. The testifying expert witness, when explaining the applicable standard of care, “would draw upon his own education and practical frame of reference as well as upon relevant medical thinking, as manifested by literature, educational resources and information available to practitioners, and experiences of similarly situated members of the profession.” Accordingly, in typical medical negligence litigation, the plaintiff’s expert witness testifying regarding the existence of and the defendant-physician’s deviation from the standard of care would be a physician. Why, then, have courts permitted non-physicians to …

Reforming Institutions: The Judicial Function In Bankruptcy And Public Law Litigation, Kathleen G. Noonan, Jonathan C. Lipson, William Simon

Indiana Law Journal

Public law litigation (PLL) is among the most important and controversial types of dispute that courts face. These civil class actions seek to reform public agencies such as police departments, prison systems, and child welfare agencies that have failed to meet basic statutory or constitutional obligations. They are controversial because critics assume that judicial intervention is categorically undemocratic or beyond judicial expertise.

This Article reveals flaws in these criticisms by comparing the judicial function in PLL to that in corporate bankruptcy, where the value and legitimacy of judicial intervention are better understood and more accepted. Our comparison shows that judicial …

Tribes, Cities, And Children: Emerging Voices In Environmental Litigation, Nina A. Mendelson

Articles

an environmental nongovernmental organization ("NGO") on behalf of a neighbor or hiker.1 The NGO would allege that the individual faced health risks, that her property was contaminated, or that she could no longer hike, fish, swim, or view wildlife such as the endangered Nile crocodile, as in the well-known case of Lujan v. Defenders of Wildlife.

Contracting On Litigation, Kathryn E. Spier, J.J. Prescott

Articles

Two risk-averse litigants with different subjective beliefs negotiate in the shadow of a pending trial. Through contingent contracts, the litigants can mitigate risk and/or speculate on the trial outcome. Contingent contracting decreases the settlement rate and increases the volume and costs of litigation. These contingent contracts mimic the services provided by third-party investors, including litigation funders and insurance companies. The litigants (weakly) prefer to contract with risk-neutral third parties when the capital market is transaction-cost free. However, contracting with third parties further decreases the settlement rate, increases the costs of litigation, and may increase the aggregate cost of risk bearing.

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.

Why Consumer Defendants Lump It, Emily S. Taylor Poppe

Northwestern Journal of Law & Social Policy

No abstract provided.

A Primer On Opioid-Epidemic Litigation, Roger Michalski

Other Faculty Publications

No abstract provided.

Federal Regulation Of Third-Party Litigation Finance, Austin T. Popp

Vanderbilt Law Review

Third-party litigation finance has become a powerful and influential industry that will continue to play a significant role in shaping the legal landscape for years to come. The opportunities-and challenges-introduced by this burgeoning industry are legion, and with them has come a swath of disparate state regulations. These regimes have failed to balance important consumer- and commercial-lending protections with facilitation of the growth of an industry that is essential to increasing access to the courtroom.

In response, this Note contends that a federal agency, the Consumer Financial Protection Bureau, should be delegated the authority to promulgate regulations (1) capping interest …

Full Cost In Translation: Awarding Expert Witness Fees In Copyright Litigation, Nicholas Vennekotter

Fordham Law Review

When deciding whether to bring or defend against copyright infringement claims, the cost of litigation plays a critical role in the minds of potential litigants. The cost of retaining experts, particularly, is a large factor in this calculus. Although U.S. courts generally require each party to cover the cost of their own legal fees during litigation, the Copyright Act of 1976 permits courts, in their discretion, to allow the prevailing party to recover “full costs.” Yet, the language “full costs” is considered ambiguous, which leads to inconsistent awards of costs among the appellate courts. The circuits disagree whether the Copyright …