Litigation Commons^™

Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton

Cornell Law Faculty Publications

The American class action is a procedural tool that advances substantive law values such as deterrence, compensation, and fairness. Opt-out class actions in particular achieve these goals by aggregating claims not only of active participants but also passive plaintiffs. Full faith and credit then extends the preclusive effect of class judgments to other U.S. courts. But there is no international full faith and credit obligation, and many foreign courts will not treat U.S. class judgments as binding on passive plaintiffs. Therefore, some plaintiffs may be able to wait until the U.S. class action is resolved before either joining the U.S. …

They Had Nothing, Charles Wilkinson

Publications

No abstract provided.

Certiorari And The Marriage Equality Cases, Carl W. Tobias

Law Faculty Publications

Marriage equality has come to much of the nation. Over 2014, many district court rulings invalidated state proscriptions on same- sex marriage, while four appeals courts upheld these decisions. However, the Sixth Circuit reversed district judgments which struck down bans in Kentucky, Michigan, Ohio, and Tennessee. Because that appellate opinion created a patchwork of differing legal regimes across the country, this Paper urges the Supreme Court to clarify marriage equality by reviewing that determination this Term.

Constitutional Law - Police Interrogation Techniques And When To Determine How Much Is Too Much - United States V. Jacques, 744 F.3d 804 (1st Cir. 2014), Anjali M. Chhatre

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Dead Money: A Posthumously Conceived Child's Inheritance Rights Under The Social Security Act & State Intestacy Law, Heather Lacount

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Managing Personal Device Use In The Workplace: How To Avoid Data Security Issues And The Dig Yourself Out Of Your Failed Byod Policy, Andrew Freedman

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

There Is No Such Thing As Litigation: Access To Justice And The Realities Of Adjudication, Robert Rubinson

All Faculty Scholarship

Does a "contest by judicial process" describe litigation's "means and applications"? Overwhelmingly, no. Litigation is not about judges: it is about default judgments, settlements, plea bargains. It sometimes does not even involve judges at all. Litigation is not about trials: the amount of litigation that goes to trial is infinitesimal. It is not about "process": the process is so minimal that to dignify it with that term stretches the word beyond recognition. It is not a "contest": it is an exercise where one side has no plausible chance of winning, especially since that side either has no lawyers or lawyers …

For Men Only: A Gap In The Rules Allows Sex Discrimination To Avoid Ethical Challenge, Michelle N. Struffolino

American University Journal of Gender, Social Policy & the Law

The billboard states: “Divorce: Men Only.” The reaction is one of confusion. Something just does not seem right. Isn’t this discrimination? Is the system willing to allow this message because the need to protect men’s rights in divorce outweighs the systemic and societal harms associated with the message?

Although this article focuses on the ethical issues associated with firms that exclude women from the pool of potential divorce clients, the existence of women only law firms is acknowledged. The analysis of the ethical issues raised by these gender specific firms is somewhat the same regardless of what gender is excluded. …

The Process Of Marriage Equality, Josh Blackman, Howard M. Wasserman

Faculty Publications

No abstract provided.

From Commitment To Compliance: Enforceability Of Remedial Orders Of African Human Rights Bodies, Roger-Claude Liwanga

Brooklyn Journal of International Law

Over the last seven decades, there has been a global proliferation of international and regional human rights tribunals. But with no coercive power to enforce their judgments, these international tribunals rely either on the good faith of the State parties or on the political process for the implementation of their remedial orders. This nonjudicial approach to enforcement has showed its limits, as most State parties are noncompliant with international judgments to the detriment of human rights victims. This article recommends a new approach involving the judicialization of the post-adjudicative stage of international proceedings as an avenue to increase the enforceability …

The Problem With Frand: How The Licensing Commitments Of Standard-Setting Organizations Result In The Misvaluing Of Patents, David Arsego

Brooklyn Journal of International Law

Standard-setting organizations (SSOs) are bodies that oversee the development of technical standards. Technical standards are common technological designs that are used across a variety of platforms, for instance LTE, which is utilized throughout the mobile phone industry. Members of SSOs contribute different pieces of technology to an ultimate design, and if a patent covers the technology, it is called a standard-essential patent (SEP). SSOs require their members to license these patents to each other on fair, reasonable, and nondiscriminatory (FRAND) terms. This Note analyzes the FRAND requirement and the different ways that courts and private parties interpret it. The ambiguity …

Patent Punting: How Fda And Antitrust Courts Undermine The Hatch-Waxman Act To Avoid Dealing With Patents, Rebecca S. Eisenberg, Daniel A. Crane

Michigan Telecommunications & Technology Law Review

Under the Hatch-Waxman Act, patent law and FDA regulation work together to determine the timing of generic entry in the market for drugs. But FDA has sought to avoid any responsibility for reading patents, insisting that its role in administering the patent provisions of the Hatch-Waxman Act is purely ministerial. This gap in regulatory oversight has allowed innovators to use irrelevant patents to defer generic competition. Meanwhile, patent litigation has set the stage for anticompetitive settlements rather than adjudication of the patent issues in the courts. As these settlements have provoked antitrust litigation, antitrust courts have proven no more willing …

Disarming Employees: How American Employers Are Using Mandatory Arbitration To Deprive Workers Of Legal Protection, Jean R. Sternlight

Scholarly Works

Employers’ imposition of mandatory arbitration constricts employees’ access to justice. The twenty percent of the American workforce covered by mandatory arbitration clauses file just 2,000 arbitration claims annually, a minuscule number even compared to the small number of employees who litigate claims individually or as part of a class action. Exploring how mandatory arbitration prevents employees from enforcing their rights the Article shows employees covered by mandatory arbitration clauses (1) win far less frequently and far less money than employees who litigate; (2) have a harder time obtaining legal representation; (3) are often precluded from participating in class, collective or …

The Market For Leadership In Corporate Litigation, Jessica M. Erickson

Law Faculty Publications

Conventional wisdom has long held that leadership decisions in corporate litigation are best left to the lawyers. Even as the world of corporate litigation has changed dramatically, courts have consistently relied on the lawyers themselves to decide who among them will control litigation decisions. As a result, leadership decisions in corporate litigation are almost always made in private negotiations and back room deals. This Article pulls back the curtain on these decisions, using empirical data to conduct the first in-depth examination into the market for leadership in corporate litigation. This examination reveals a market that bears little resemblance to the …

When The Lawyer Screws Up: A Portrait Of Legal Malpractice Claims And Their Resolution, Herbert M. Kritzer, Neil Vidmar

Faculty Scholarship

No abstract provided.

The Mdl Vortex Revisited, Thomas B. Metzloff

Faculty Scholarship

No abstract provided.

Litigation Isolationism, Pamela K. Bookman

Faculty Scholarship

Over the past two decades, U.S. courts have pursued a studied avoidance of transnational litigation. The resulting litigation isolationism appears to be driven by courts’ desire to promote separation of powers, international comity, and the interests of defendants. This Article demonstrates, however, that this new kind of “avoidance” in fact frequently undermines not only these values but also other significant U.S. interests by continuing to interfere with foreign relations and driving plaintiffs to sue in foreign courts.

This Article offers four contributions: First, it focuses the conversation about transnational litigation on those doctrines designed to avoid it—that is, doctrines that …

A Pragmatic Approach To Interpreting The Federal Rules, Suzette M. Malveaux

Publications

No abstract provided.

Appraisal Arbitrage And The Future Of Public Company M&A, Minor Myers, Charles R. Korsmo

Faculty Scholarship

No abstract provided.

Court Of Appeals Of New York, Watson V. State Commission On Judicial Conduct, Denise Shanley

Touro Law Review

No abstract provided.

Therapeutic Jurisprudence, David Wexler

Touro Law Review

No abstract provided.

Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz

Touro Law Review

No abstract provided.

Qualified Immunity: The Constitutional Analysis And Its Application, Karen Blum

Touro Law Review

No abstract provided.

Guidelines And Best Practices For Large And Mass Tort Mdls (First Edition), Duke Law School Center For Judicial Studies

Bolch Judicial Institute Publications

Mass-tort MDLs dominate the federal civil docket, yet they present enormous challenges to transferee judges assigned to manage them. There is little official guidance and no rules specific to the management of mass-tort MDLs, often requiring the transferee judge to develop procedures out of whole cloth.

Beginning in 2013, the Bolch Judicial Institute (then the Center for Judicial Studies) sought to address this issue through a series of annual bench-bar conferences. From these conferences came the Guidelines and Best Practices for Large and Mass-Tort MDLs document, which is designed to help judges and legal practitioners understand and efficiently navigate complex …

Coleman V. Tollefson: Brief Amici Curiae Of Thirty-Three Professors In Support Of Petitioner, Margo Schlanger

Appellate Briefs

Amici are professors with an academic interest in prisoner litigation and federal courts

The Prison Litigation Reform Act's "three strikes" provision, 28 U.S.C. § 1915(g), bars a prisoner from bringing a civil action without prepaying the full amount of the filing fee only if that prisoner has three prior qualifying dismissals that have become final on appeal.

Reversing the Sixth Circuit's contrary reading of the statute in this case will not open the floodgates to frivolous prisoner litigation, as both the provisions of the Prison Litigation Reform Act (PLRA) and data from the Federal Judicial Center confirm.

European Economic Community - The Use Of Article 173(2) Of The Eec Treaty To Contest Actions Of The European Parliament, Partie Ecologiste 'Les Verts' (The Greens) V. European Parliament, [1987] 2 Comm. Mkt. L.R. 343 (1986)., Scott N. Carlson

Georgia Journal of International & Comparative Law

No abstract provided.

The Case For An International Court Of Civil Justice, Maya Steinitz

Faculty Scholarship

We live in a world in which the victims of cross-border mass torts de facto (not de jure) have no court to turn to in order to pursue legal action against American multinational corporations when they are responsible for disasters. 1 The only way to provide a fair and legitimate process for both victims and corporations is to create an International Court of Civil Justice (ICCJ). This Essay seeks to start a conversation about this novel institutional solution. It lays out both a justice case, from the plaintiffs' viewpoint, and an efficiency case, from a corporate defendant's viewpoint, for why …

Preventative V. Punitive: How Genetically Modified Rice Litigation Shaped Regulation And Remedy For Genetically Engineered Crops, Allison Waldrip Bragg

Journal of Food Law & Policy

As agricultural technology develops, new issues emerge. While genetically engineered crops can increase yields and productivity, they can also increase new legal concerns that had not previously existed. One such concern is the comingling of non-engineered crops with genetically engineered varieties. The corruption of plants that are not engineered is a problem not only because of the loss of that original plant itself if the entire plant population were to become comingled, but also because of the inability to sell a crop that has been intended as a non-engineered crop when it is infiltrated by genetically engineered material.

The Hamburglar, Friend Or Foe: What Is The Best Solution For Lawsuits Alleging Obesity Caused By Fast Food Outlets When No Causal Link Between Consumption And Obesity Can Be Found?, Mary Hoshall Hodges

Journal of Food Law & Policy

When is the last time you ventured through the drive-thru of a fast food establishment? Maybe last night when it was just easier than taking the time to cook dinner, or maybe last weekend on your way home from vacation, or maybe when you were running low on funds and needed a cheap meal? Given the busy, fast-paced lives Americans lead, it is no wonder that many rely on the fast food industry, even though most would not care to admit it.

Trial Practice And Procedure, Brandon L. Peak, Tedra C. Hobson, Mary K. Weeks, Anna W. Howard, Morgan E. Duncan, Joseph M. Colwell

Mercer Law Review

This Article addresses several significant cases and legislation of interest to the Georgia civil trial practitioner that occurred during the survey period of this publication.