Litigation Commons^™

Department Of Insurance, J. D. Fellmeth

California Regulatory Law Reporter

No abstract provided.

Constitutional Law - Tipping The Scale: Extending Scope Of Brady Application For The Sentencing Phase In Post-Conviction Cases - United States V. Hampton, 109 F. Supp.3d 431 (D. Mass. 2015), Natasha A. Desa

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Employment Law - Independent Contractor Employed By A Regulation: Sebago V. Boston Cab Dispatch, Inc., 28 N.E.3d 1139 (Mass. 2015), Marlee. R. Stever

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

An Exception To The Derivative Rule: Allowing Mutual Fund Investors To Bring Suits Directly, Jamie D. Kurtz

Brooklyn Law Review

Mutual funds differ greatly from traditional corporations in the way they are formed and operated. Despite these differences, courts apply the same rules for derivative shareholder litigation to both types of entities. While these rules make sense and were mostly created with corporations in mind, courts have generally been unwilling to consider mutual funds’ unique characteristics in determining whether to allow direct litigation from shareholders. This note explores those unique characteristics and the usual policy reasons for requiring derivative litigation. It concludes that in most cases these unique characteristics make a derivative suit nearly impossible to sustain. Further, the normal …

Reevaluating Attorney-Client Privilege In The Age Of Hackers, Anne E. Conroy

Brooklyn Law Review

The news story is now familiar: hackers breach a security system and post internal, confidential information online for anyone with an Internet connection to comb through. This digital version of whistleblowing, called “hacktivism,” is attractive to the media, which has leaned on broad First Amendment protections to widely cover the confidential communications revealed by hackers. These hacks also provide attorneys with enticing opportunities to look through previously confidential files. But as ethics and evidentiary rules stand, it is not clear if an attorney may view the files, let alone use them as evidence in litigation. That companies are hacked is …

Busting Up The Pretrial Industry, Andrew S. Pollis

Faculty Publications

It is by now axiomatic that the objective of the civil lawsuit has evolved. Litigants no longer routinely resolve their disputes through trial but instead engage in pretrial battles designed to extract favorable settlements. Modern litigation revolves around protracted discovery and dispositive motions, driven by two primary dynamics: (1) the maximization of fees for lawyers who charge their clients by the hour; and (2) the desire to make litigation as painful as possible for an adversary so that settlement becomes the adversary’s better option. We have, in short, fostered a pretrial industry that can relegate the merits of a dispute …

To Whom Should We Point Our Stylus Allocating The Burden Of Review In E-Discovery Of Social Media Content, Rochella T. Davis

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

An Empirical Study Of China's Change-Of-Venue System In Anti-Corruption Litigation: Implications For Anti-Corruption Reform, Jinting Deng

Maurer Theses and Dissertations

Presenting the first empirical study of the change-of-venue (COV) system in Chinese corruption cases, this dissertation assesses the role of the COV system in China’s anti-corruption campaign. Although COV is routinely triggered in Chinese corruption cases, COV remains understudied and poorly understood. Scholars, judges, and practitioners expected that the COV system would increase sentences by removing defendants from the jurisdictions of local judges where they would benefit from bias and cronyism. However, this dissertation’s empirical findings – from an analysis of over 800 corruption cases in Beijing – indicate that, after accounting for other variables, sentences for corruption did not …

Restructuring Sovereign Debt After Nml V. Argentina, Lee C. Buchheit, G. Mitu Gulati

Faculty Scholarship

The decade and a half of litigation that followed Argentina’s sovereign bond default in 2001 ended with a great disturbance in the Force. A new creditor weapon had been uncloaked: The prospect of a court injunction requiring the sovereign borrower to pay those creditors that decline to participate in a debt restructuring ratably with any payments made to those creditors that do provide the country with debt relief.

For the first time holdouts succeeded in fashioning a weapon that could be used to injure their erstwhile fellow bondholders, not just the sovereign issuer. Is the availability of this new weapon …

Limiting The Last-In-Time Rule For Judgments, Kevin M. Clermont

Cornell Law Faculty Publications

A troublesome problem arises when there are two binding but inconsistent judgments: Say the plaintiff loses on a claim (or issue) in the defendant’s state and then, in a second action back home, wins on the same claim (or issue). American law generally holds that the later judgment is the one entitled to preclusive effects. In the leading article on the problem, then-Professor Ruth Bader Ginsburg suggested that our last-in-time rule should not apply if the U.S. Supreme Court declined to review the second court’s decision against giving full faith and credit. Although that suggestion is unsound, the last-in-time rule …

The Sixteenth Annual Albert A. Destefano Lecture On Corporate, Securities & Financial Law At The Fordham Corporate Law Center, Sean J. Griffith, The Honorable Andre G. Bouchard

Fordham Journal of Corporate & Financial Law

No abstract provided.

Vicarious Windfalls, Justin Sevier

Scholarly Publications

The vicarious liability doctrine, which holds third parties responsible for the legal obligations of their duly authorized agents, was designed in part to ensure that tort victims are not undercompensated by insolvent agent wrongdoers. But many legal scholars are highly critical of the doctrine and suggest that fact finders’ systematic biases-particularly with respect to corporate third parties-cause unworthy tort plaintiffs to be overcompensated at the expense of innocent, deep-pocket corporate defendants. These scholars have offered little empirical evidence for these claims and, in fact, behavioral research suggests that their predictions are incorrect.

This Article introduces the concept of the vicarious …

The Uncertain Case For Appraisal Arbitrage, Jay B. Kesten

Scholarly Publications

No abstract provided.

Aging Injunctions And The Legacy Of Institutional Reform Litigation, Jason Parkin

Elisabeth Haub School of Law Faculty Publications

Institutional reform litigation has been an enduring feature of the American legal system since the Supreme Court’s ruling in Brown v. Board of Education. The resulting injunctions have transformed countless bureaucracies notorious for resisting change, including public school systems, housing authorities, social services agencies, correctional facilities, and police departments. But these injunctions face an uncertain future. The Supreme Court has held that institutional reform injunctions must be easier to terminate than all other injunctions issued by the federal courts. Some institutional reform injunctions go unenforced or are forgotten entirely. Others expire due to sunset provisions. At the same time, doctrinal …

Ballot Selfies: Balancing The Right To Speak Out On Political Issues And The Right To Vote Free From Improper Influence And Coercion, Isidora Koutsoulias

Journal of Law and Policy

Courts and legislatures face the difficult task of balancing individual First Amendment rights with other basic freedoms, a task that has become increasingly challenging with the advent of new technology. The emergence of the ballot selfie has caused a legal uproar due to the perception that it may compromise the sanctity of the electoral process and the secret ballot process by facilitating vote buying and coercion. Consequently, several states have enacted laws that prohibit most or all ballot selfies. However, many individuals have rightfully protested these laws as an unreasonable restraint on freedom of speech. This Note argues that although …

A New Hope: Tortious Interference With An Expected Inheritance In Rhode Island, Rebecca M. Murphy, Samantha M. Clarke

Roger Williams University Law Review

No abstract provided.

A Regulatory Theory Of Legal Claims, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Procedural law in the United States seeks to achieve three interrelated goals in our system of litigation: efficient processes that achieve “substantive justice” and deter wrongdoing, accurate outcomes, and meaningful access to the courts. For years, however, procedural debate, particularly in the context of due process rights in class actions, has been redirected toward more conceptual questions about the nature of legal claims—are they more appropriately conceptualized as individual property or as collective goods? At stake is the extent to which relevant procedures will protect the right of individual claimants to exercise control over their claims. Those with individualistic conceptions …

Mythbusting: Why The Critics Of Litigation Finance Are Wrong, Roni Elias

Florida A & M University Law Review

Critics of ALF contend that such financing methods create various problems: they violate well-established principles of common law about the relationship between litigants and third-parties; they are tantamount to usurious loans; and they threaten the integrity of the judicial system by making it easier for litigants with few resources to bring frivolous lawsuits.

This article discusses both sides of this debate and concludes that the most prevalent criticisms of ALF are based upon misconceptions and myths about the nature of ALF transactions and of the interests of the parties involved in those transactions. When ALF is carefully considered, it is …

From Inside The Cage To Outside The Box: Natural Resources As A Platform For Nonhuman Animal Personhood In The U.S. And Australia, Randall S. Abate, Jonathan Crowe

Journal Publications

Nonhuman animals are currently treated as property under U.S. and Australian law, leaving them open to various kinds of exploitation. There has been a gradual evolution away from this property paradigm in both countries, but significant work remains to ensure that nonhuman animals are afforded adequate legal protections. This article considers the legal avenues available to protect nonhuman animals in the U.S. and Australia, focusing particularly on the attribution of legal personhood. Section 2 of the article reviews attempts by the Nonhuman Rights Project (NhRP) to establish legal personhood protections for nonhuman animals through writ of habeas corpus petitions under …

Attorney-Directed Voir Dire Comes To Massachusetts: The Republic Is Safe, Dennis J. Curran

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Roadway To Reform: Assessing The 2015 Guidelines And New Federal Rule To The Indian Child Welfare Act's Application To State Courts, Allison E. Davis

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Botched: The Lethally Injected Effect Of Glossip On The Future Of Capital Punishment, Meghan Elizabeth Hall

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Constitutional Law - Should I Stay Or Should I Go: First Circuit's Analysis Of Fourth Amendment Seizure - United States V. Fields, 823 F.3d 20 (1st Cir. 2016), Connor J. Gilbert

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Class Actions: How Easy Are They To Bring, And Why, Chelsey E. Turner

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Criminal Law - First Complaint Doctrine Applies To Defendant In A Sexual Assault Prosecution - Commonwealth V. Mayotte, 56 N.E.3d 756 (Mass. 2016, Jennifer Plummer

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Effective Criminal Sentencing: Analyzing The Effectiveness Of The Federal Sentencing Guidelines On Career Offenders, Stephanie Marie Toribio

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

The Transformation Of Indirect Harassment In The 21st Century: Harassment Telephone Laws, Cyberbullying, And New Ways Of Analyzing First Amendment Rights, Brian S. Brazeau

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Constitutional Law - Sticks & Stones May Break My Bones, But The First Amendment Will Protect Me: Federal Court Of Appeals Upholds Unconstitutionality Of The Lanham Trade-Mark Act's Sec. 2(A) Disparaging Provision As A Violation Of First Amendment Rights - In Re Tam, 808 F.3d 1321 (Fed. Cir. 2015), Kimberly T. Aquino

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Proving Hate: The Difficulties Of Successfully Prosecuting Bias-Motivated Crimes, Shirin Afsous

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Table Of Contents, Jtaa Editors

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.