Litigation Commons^™

Section 1983 Custom Claims And The Code Of Silence, Myriam Gilles

Touro Law Review

No abstract provided.

Problems Concerning Litigating Custom And Practice Cases, Steve Ryals

Touro Law Review

No abstract provided.

Florida's "Brave New World": The Transition From Frye To Daubert Will Transform The Playing-Field For Litigants In Medical Causation Cases, Erica W. Rutner, Lara B. Bach

Barry Law Review

No abstract provided.

Lawyered Up: Local Communities, Courts, And Urban Renewal, Madeline Spolin

Sociology Honors Projects

What is the role of the judicial system in solving issues of urban renewal? I propose that communities use courts as a redress to become part of the decision making process on urban renewal issues, because courts provide procedural issues that are easily open to challenge in federal statute. I analyze public statements made throughout the construction of the Green Line in Minneapolis and St. Paul, Minnesota, a federally funded urban renewal project. In spite of built in public consultation processes, changes to transit design do not occur when concerns are raised at public consultation meetings; instead, they come from …

The Death Knell Of Issue Certification And Why That Matters After Wal-Mart V. Dukes, Andrey Spektor

St. Thomas Law Review

This article begins by examining the effect of Dukes, detailing in Section I how the Court's pronouncement has been felt most acutely by class plaintiffs seeking to certify Rule 23(b)(3) classes. Section II explains why that is significant in light of the Court's most recent cases and orders. It profiles Comcast's unusual trip through the appellate process and offers two competing interpretations of the Court's opinion around which distinct camps at the lower court level have already coalesced. Neither camp, however, the Section argues, understands the disagreement between the majority and dissenting views in Comcast or the Court's other 2013 …

Preliminary Injunctions Post-Mayo And Myriad, Jacob S. Sherkow

Articles & Chapters

The Supreme Court's recent interest in patentable subject matter has had several, unexpected downstream effects on preliminary injunctions in patent disputes.

The Supreme Court has recently expressed increased interest in patent eligibility, or patentable subject matter, the doctrine that limits the types of inventions eligible for patenting. Its two decisions, Mayo Collaborative Services v. Prometheus Laboratories, Inc., in 2012, and Association for Molecular Pathology v. Myriad Genetics, Inc., in 2013, represented the first broad restrictions on patentable subject matter in over thirty years. And later this term, the Court will decide yet another patent eligibility case: Alice Corp. v. CLS …

A Deal Is A Deal: Plea Bargains And Double Jeopardy After Ohio V. Johnson, Philip Chinn

Seattle University Law Review

The Double Jeopardy Clause provides that no person will “be subject for the same offence to be twice put in jeopardy of life or limb.” On March 10, 2004, Pedro Cabrera made a statement that cost him fourteen years of his life: he proclaimed his innocence. The court accepted this plea and ordered a finding of guilty with a recommended sentence of six years. However, during an exchange that followed, Mr. Cabrera asserted that he was actually innocent but that he preferred “to take the time” instead of proceeding to trial. The judge then refused to accept Mr. Cabrera’s guilty …

A Mild Winter: The Status Of Environmental Preliminary Injunctions, Sarah J. Morath

Seattle University Law Review

Since the enactment of environmental legislation in the 1970s, the preliminary injunction standard articulated by the Supreme Court for environmental claims has evolved from general principles to enumerated factors. In Winter v. Natural Resource Defense Council, Inc., the Court’s most recent refinement, the Court endorsed but failed to explain the application of a common four-factor test when it held that the alleged injury to marine mammals was outweighed by the public interest of a well-trained and prepared Navy. While a number of commentators have speculated about Winter’s impact on future environmental preliminary injunctions, this article seeks to more precisely determine …

Character, Liberalism, And The Protean Culture Of Evidence Law, Daniel D. Blinka

Seattle University Law Review

It is time to rethink character evidence. Long notorious as the most frequently litigated evidence issue, character doctrine plagues courts, trial lawyers, and law students with its infamously “grotesque” array of nonsensical rules, whimsical distinctions, and arcane procedures. Character is a calculation of social worth and value; it is the sum total of what others think of us, whether expressed as their own opinion or the collective opinions of many (reputation). Once we grasp that character is a social construct, we are in a better position to address some of the problems that plague evidence law. To provide needed clarity …

Consilience: Radiocarbon, Instrumental Neutron Activation Analysis, And Litigation In The Ancestral Caddo Region, Robert Z. Selden Jr.

CRHR: Archaeology

Through the creation and analysis of databases for radiocarbon, instrumental neutron activation analysis (INAA), and law, macro-level trends are exposed that form the framework of a broader research program aimed at advancing ideas of craft specialization and archaeological theory in the ancestral Caddo region of Southwest Arkansas, Northwest Louisiana, Northeast Texas, and Southeast Oklahoma. The findings of this investigation illustrate the research potential that remains buried within the context of cultural resource management (CRM) reports and legal databases (Westlaw and LexisNexis) that is awaiting consumption within regional research designs aimed at exploring the nuances and trends that appear through synthetic …

Does Criminal Diversion Contribute To The Vanishing Civil Trial?, John B. Meixner Jr., Shari Seidman Diamond

Scholarly Works

Through his seminal work on the vanishing trial, Professor Marc Galanter has had a profound impact on public and scholarly discourse about the role of the trial in litigation, documenting the sharp reductions in the rate of civil cases since the mid-twentieth century. While there is little remaining doubt that the American civil trial is an increasingly scarce commodity, there is still much debate as to what has caused the decline.

In this Article, we seek to explore the extent to which the federal criminal docket may be contributing to the rapid disappearance of the civil trial by taking priority …

The Child's Right To Be Heard And Represented In Judicial Proceedings , Howard A. Davidson

Pepperdine Law Review

No abstract provided.

Vaccines And The Law, Michael Sanzo Ph.D.

Pepperdine Law Review

The last twenty years have seen a sea-change in the area of proving causation in the toxic tort setting, with courts demanding stronger, scientifically tested evidence. At the same time, a closely related debate has been raging about separating cause from coincidence under the National Childhood Vaccine Injury Act compensation program for injuries that might have been the result of vaccinations. The Vaccine Act created a no-fault compensation fund financed by a tax on childhood vaccines to address harms resulting from those vaccines. Unfortunately, Congress gave little direction with regard to the level of causal certainty that would be required …

Newman, J., Dissenting: Another Vision Of The Federal Circuit, Blake R. Hartz

IP Theory

No abstract provided.

What You Have Said In The Dark: The Evolution Of Media In The Courtroom And The New Challenges Of Containing The Jury's Information Space, Charles Nesson

St. Thomas Law Review

The trial system is in a form of crisis. Recently, the United States Supreme Court effectively recognized that we no longer have a jury system. Instead, we have a plea bargaining system with the remote possibility of a jury trial at the very tail end of that system. Given the pervasiveness of sensational news stories, the option of settlement may appear more attractive to a litigant because it avoids the public display that often accompanies high-profile trials. This also serves a benefit to nervous judges who, without the stress of a trial, may avoid the onslaught of media pressure for …

Sorry Linus, I Need Your Security Blanket: How The Smartphone, Constant Connectivity With The Internet, And Social Networks Act As Catalysts For Juror Misconduct, Patrick M. Delaney

St. Thomas Law Review

In the context of the judicial system, it is the judges, lawyers, and parties to lawsuits who are equally affected by juror's statements. While this problem is not exclusive to criminal law, it is within the context of criminal law that the most severe problems are presented to the courts. This is not an attempt to suggest any lack of seriousness associated with a civil claim, but the fact that the stakes for a defendant remain higher in a criminal case because an individual's fundamental, constitutional rights are at issue is a significant difference. The knee jerk reaction by the …

Same Violence, Same Sex, Different Standard: An Examination Of Same-Sex Domestic Violence And The Use Of Expert Testimony On Battered Woman's Syndrome In Same-Sex Domestic Violence Cases, Leonard D. Pertnoy

St. Thomas Law Review

1971 marked the genesis of the Battered Women's Movement and, since then, remarkable strides have been made to address and combat domestic violence. Today, for example, a myriad of domestic abuse agencies offer an array of services, including: 24-hour hotlines; counseling; safe houses; transitional living; children's services; life skills education; professional training; batterers intervention; and legal assistance These strides, however, cannot extirpate two ugly truths: domestic violence still pervades our society, and it afflicts more than those in heterosexual relationships. Anecdotal evidence and a growing body of literature indicate that domestic abuse is not unique to heterosexuals, but occurs in …

Why Care About The Polar Bear?: Economic Analysis Of Natural Resources Law And Policy [Outline], Lisa Heinzerling

The Future of Natural Resources Law and Policy (Summer Conference, June 6-8)

1 page.

"Lisa Heinzerling, Georgetown Law School" -- Agenda

Trust Your Broker: Suitability, Modern Portfolio Theory, And Expert Witnesses, Roger Reinsch, J B. Reich, Nauzer Balsara

St. Thomas Law Review

The death of the "dot coms" in the late 1990's left many investors questioning investment advice. Specifically, they began to question the direction, interests, and professional competence of their stockbrokers. Investors who felt their stockbrokers failed them are increasingly resorting to litigation, pursuing what has become known as "suitability" claims, claims based on the argument that brokers recommended or purchased securities that were not suitable for an investor's profile. The issues in and surrounding suitability claims are complex, yet surprisingly little has been written on this topic. This article seeks to foster a much needed discussion and will examine the …

Agenda: A Cartography Of Governance: Exploring The Province Of Environmental Ngos, University Of Colorado Boulder. School Of Law, University Of Colorado Boulder. Environmental Program, University Of Tulsa. National Energy-Environment Law & Policy Institute, University Of Colorado Boulder. United Government Of Graduate Students

A Cartography of Governance: Exploring the Province of Environmental NGOs (April 7-8)

Presented by: the Colorado Journal of International Environmental Law and Policy on April 7 & 8, 2001. Symposium director: Lakshman D. Guruswamy.

Co-sponsored by: University of Colorado School of Law, University of Colorado Environmental Program, University of Tulsa National Energy-Environment Law and Policy Institute, University of Colorado United Government of Graduate Students.

The papers and edited proceedings of the conference will be published in a special symposium issue of the Colorado Journal of International Environmental Law & Policy (CJIELP).

"The first objective of the Symposium was to understand and explore the growing importance of nongovernmental actors, and delineate the manner …

Administrative Pitfalls Of Litigating Under The Florida Civil Rights Act, Kenneth M. Curtin

St. Thomas Law Review

Under the common law in Florida, an employee hired for an indefinite period of time was considered an employee-at-will and either party could terminate the employment at any time and for any reason without incurring liability. The Florida Civil Rights Act of 19922 ("FCRA") modified the common law in that, the FCRA created a cause of action for unlawful termination. The FCRA was patterned after Title VII of the Federal Civil Rights Acts of 1964 and 1991, as well as the Age Discrimination in Employment Act.' Nevertheless, differences abound between federal legislation and the FCRA, especially in regards to administrative …

Fraud And Federalism: Preempting Private State Securities Fraud Causes Of Action, Michael A. Perino

Faculty Publications

The passage of the Private Securities Litigation Reform Act of 1995 has engendered a significant forum shift in class action securities fraud litigation, from federal to state court. This unintended by-product of the Act has reignited debate over our dual federal-state system of securities regulation and in turn has inspired a discussion as to whether Congress should now preempt state securities fraud causes of action. This article argues that preemption is an appropriate, but not the only, solution to these concerns. To support this argument, this article first traces the history of dual state-federal securities regulation within the context of …

Class Action Chaos? The Theory Of The Core And An Analysis Of Opt-Out Rights In Mass Tort Class Actions, Michael A. Perino

Faculty Publications

From breast implants to cigarettes, mass tort class actions are a prominent and controversial part of the contemporary litigation landscape. A critical component of these actions is the ability of class members to “opt out” and thereby exclude themselves from the effect of any class judgment. The tension between individual autonomy and the desire for global resolution of mass controversies has led to an intense debate concerning the circumstances under which opt-out rights should be constrained, if at all.

This Article makes five distinct contributions to the class action literature. First, the Article applies the game theoretic concept of the …

An Attorney's Right To Retain Fees Derived From A Fraudulent Law Suit, Leonard D. Pertnoy

St. Thomas Law Review

The remedy of restitution, used to prevent unjust enrichment, is a fundamental right firmly entrenched in the common law. This is especially true in cases where a victim seeks equitable relief to require the return of money or property obtained as a result of fraud. However, should the defrauded person always be entitled to be made whole? Similarly, the remedy of forfeiture is also a deeply rooted legal concept, finding its beginnings in early English common law. Originally, forfeiture was a punishment annexed by law to some illegal act. However, the concept of deodand now not only includes forfeiture of …

The Pentium Papers: A Case Study Of Collective Institutional Investor Activism In Litigation, Joseph A. Grundfest, Michael A. Perino

Faculty Publications

This article suggests that institutional investors have rational incentives to become more active in the litigation arena, but that the current debate is falsely constrained because it rests on the assumption that institutional investors must participate either by (1) assuming the formal role of lead plaintiff, class representative, or intervenor or, (2) not participating at all. This is a false dichotomy because, as this article demonstrates, institutions have available to them a rich array of flexible, informal, and relatively inexpensive mechanisms by which they can make their views known to litigants and courts alike.

Our hypothesis that institutional investor activism …

Logic And The Common Law Trial, Richard H. Underwood

Law Faculty Scholarly Articles

In this article, the author explores some of the inconsistencies between logic and the practice of law. The article draws together numerous anecdotes and examples of situations in which common sense was rejected or ignored in the name of legal procedure. The article focuses on various argument styles employed by lawyers.

Recovery For Economic Loss Following The Exxon Valdez Oil Spill, Victor P. Goldberg

Faculty Scholarship

The physical cleanup following one of the worst oil spills in history, that of the Exxon Valdez, is done. The legal cleanup, however, has barely begun. Over 100 law firms participating in over 200 suits in federal and state courts involving more than 30,000 claims are presently engaged in litigation. Fishermen, cannery workers, fishing lodges, tour boat operators, oil companies whose shipments were delayed, and even California motorists facing higher gasoline prices have filed claims against Exxon and its fellow defendants.

Most claimants face a formidable roadblock, the so-called Robins doctrine. Under Robins Dry Dock & Repair Co. v. Flint …

Cautionary Lessons From American Securities Arbitration: Litigation Versus Arbitration, Ronald D. Rotunda

Law Faculty News Articles, Editorials, and Blogs

In the United States, it is now quite common for lawyers and others to bemoan what is often referred to as 'the litigation crisis. ' No less an authority than former Chief Justice Warren Burger has long complained that American courts 'have become overburdened' by too may lawsuits... Similarly, the Report of the prestigious American Bar Association's Commission on Professionalism recommends expanded use of arbitration in lieu of a norrnal trial before a judge and lay jury. There should be no rush to judgment favouring arbitration. In the first place, it is not at all clear that there is a …

Agenda: The Public Lands During The Remainder Of The 20th Century: Planning, Law, And Policy In The Federal Land Agencies, University Of Colorado Boulder. Natural Resources Law Center

The Public Lands During the Remainder of the 20th Century: Planning, Law, and Policy in the Federal Land Agencies (Summer Conference, June 8-10)

Conference organizers and/or speakers included University of Colorado School of Law professors Lawrence J. MacDonnell and Charles F. Wilkinson.

Public land management has undergone major changes in recent years in response to the greatly increased planning responsibilities mandated by Congress.

Public Lands During the Remainder of the 20th Century: Planning Law and Policy in the Federal Land Agencies looked at management and planning issues related to seven major resources in the public lands: timber, rangeland, minerals, wildlife, water, recreation, and preservation values. Charles F. Wilkinson, Professor of Law, University of Colorado, gave a luncheon talk on "Public Land Planning: Will …

Civil Rico And Parens Patriae: Lowering Litigation Barriers Through State Intervention, Beth S. Schipper

William & Mary Law Review

No abstract provided.