Litigation Commons^™

Evidence, W. Randall Bassett, Simon A. Rodell, Dmitry M. Epstein

Mercer Law Review

The 2013 term of the United States Court of Appeals for the Eleventh Circuit saw a number of precedential opinions dealing with a wide variety of evidentiary issues. Of particular interest to prosecutors and criminal defense attorneys are two Eleventh Circuit decisions applying the Sixth Amendment's Confrontation Clause and a unanimous United States Supreme Court decision dealing with the Fifth Amendment's' right against self-incrimination as applied to psychiatric evidence. A number of published Eleventh Circuit decisions involved non-constitutional issues under the Federal Rules of Evidence, including balancing probative value against prejudicial effect under Rule 403, authentication of audio and video …

Trial Practice And Procedure, John O'Shea Sullivan, Ashby K. Fox, Tala Amirfazli

Mercer Law Review

The 2013 survey period yielded noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of statutory interpretation, subject matter jurisdiction, arbitration, and civil procedure.

Screening Out Innovation: The Merits Of Meritless Litigation, Alexander A. Reinert

Indiana Law Journal

Courts and legislatures often conflate meritless and frivolous cases when balancing the desire to keep courthouse doors open to novel or unlikely claims against the concern that entertaining ultimately unsuccessful litigation will prove too costly for courts and defendants. Recently, significant procedural and substantive barriers to civil litigation have been informed by judicial and legislative assumptions about the costs of entertaining meritless and frivolous litigation. The prevailing wisdom is that eliminating meritless and frivolous claims as early in a case’s trajectory as possible will focus scarce resources on the truly meritorious cases, thereby ensuring that available remedies are properly distributed …

The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decisions According To Law?, James R. Maxeiner

Georgia State University Law Review

This essay is a critical response to the 2013 commemorations of the75th anniversary of the Federal Rules of Civil Procedure.The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice”with decisions according to law.

By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do. One side promotes rules that control and conclude litigation: e.g.,plausibility pleading, case management, limited discovery, cost indemnity for discovery, and summary …

Software Patentability After Prometheus, Joseph Holland King

Georgia State University Law Review

This Note examines the history of patentability of abstract ideas and the tests that courts have used to make the determination of whether an invention incorporating an abstract idea is patentable. Part I provides a history of the four seminal cases related to patentable subject matter, as well as some more recent on point decisions. Part II changes focus to the various tests and factors that have been used by the courts, exploring the history of each, discussing the treatment by the Supreme Court, and determining the strengths and weaknesses of each. Based on the discussion in Part II, Part …

Qualified Immunity For “Private” § 1983 Defendants After Filarsky V. Delia, Andrew W. Weis

Georgia State University Law Review

In 2012, the Supreme Court addressed private party qualified immunity in the case of Filarsky v. Delia. There, the Court found that both the historical and policy bases for immunity under § 1983 supported extending qualified immunity to outside counsel retained by a municipality. The Court noted that full-time government employees can always seek qualified immunity, so not extending it to individuals employed on some other basis would create “significant line-drawing problems . . . [which could] deprive state actors of the ability to ‘reasonably anticipate when their conduct may give rise to liability . . . .’”

This …

The Conversational Consent Search: How “Quick Look” And Other Similar Searches Have Eroded Our Constitutional Rights, Alexander A. Mikhalevsky

Georgia State University Law Review

One area in which law enforcement agencies have stretched constitutional limits concerns the scope of a suspect’s consent to search his or her vehicle. Police forces across the country have tested the limits of consent by asking vague, conversational questions to suspects with the goal of obtaining a suspect’s consent to search, even though that individual may not want to allow the search or may not know that he or she has the right to deny consent.

Conversational phrases like “Can I take a quick look?” or “Can I take a quick look around?” have “emerg[ed] as . . . …

Division Of Labor: The Modernization Of The Supreme Court Of Georgia And Concomitant Workload Reduction Measures In The Court Of Appeals, Kyle G.A. Wallace, Andrew J. Tuck, Max Marks

Georgia State University Law Review

This article addresses two distinct yet interrelated topics: the arcane and unnecessarily complex jurisdictional division between the Georgia Supreme Court and Georgia Court of Appeals, and the excessive caseload at the Georgia Court of Appeals.

In Part I.A., this article discusses Georgia’s appellate system—its history, the jurisdictional division that arose, the confusion the current jurisdictional framework creates, and the limitations and burdens it places on Georgia’s highest court. In Part I.B., the article discusses the current caseload at the Court of Appeals and the burden any jurisdictional reforms would have on the Court of Appeals. In Part II, the article …

Historical Antecedents Of Challenges Facing The Georgia Appellate Courts, Michael B. Terry

Georgia State University Law Review

The Georgia appellate courts face challenges common to many courts in these days of reduced governmental resources. At the same time, the Georgia appellate courts face unusual challenges that can be traced to their historical antecedents and one unique constitutional provision: the “Two-Term Rule.” Just as “[t]he law embodies the story of a nation’s development through many centuries,” the current rules and practices of both the Supreme Court of Georgia and the Court of Appeals of Georgia embody the story of the development of those courts since their founding.

Several aspects of the history of the courts directly impact the …

Fulton County Business Court: A Specialized Solution For The Modern Business Community, Megan K. Johnson

Georgia State University Law Review

Business courts or complex commercial divisions are growing in popularity as an effective tool to channel the most complex civil cases into one place before experienced judges with the background and training necessary to resolve the sophisticated issues often presented in those cases. According to North Carolina Business Court Judge Ben F. Tennille, one of the first judicial advocates of the business court model, the evolution of specialty business courts is a necessary response to “‘the rapidly increasing complexity, rate of change and globalization of business.’”

In 2005, Fulton County Superior Court launched a Business Case Division (“Fulton Business Court”) …

Appellate Division, Third Department, People V. Smith, Jennifer Belk

Touro Law Review

No abstract provided.

Supreme Court, New York County, Hughes V. Farrey, Eric Pack

Touro Law Review

No abstract provided.

Complex Litigation In The New Era Of The Ijury, Andrew J. Wilhelm

Pepperdine Law Review

This Comment argues for a comprehensive approach to legitimizing the lay jury—an approach involving education, attorney adaptation, courtroom renovations, and judicial knowledge—and a better understanding of how legal professionals can fairly and most effectively transmit knowledge to the average American. The lay jury can remain a vital, unique part of the American judicial system if the bench and bar take seriously their responsibilities and adapt to today’s new reality. Part II examines the background of three basic components of a successful contemporary trial: technology, litigation, and the jury. Part III explores how these three components have evolved in the modern …

The End Of Sustainability, Melinda Harm Benson, Robin Kundis Craig

Publications

No abstract provided.

Managing Complex Water Resource Systems For Ecological Integrity: Evaluating Tradeoffs And Uncertainty, Richard Morrison

Publications

Water resource systems often contain numerous components that are intertwined or even contradictory, such as power production, water delivery, recreation, and environmental needs. This complexity makes it difficult to holistically assess management alternatives. In addition, hydro climatic and ecological uncertainties complicate efforts to evaluate the impacts of management scenarios. We need new tools that are able to inform managers and researchers of the tradeoffs or consequences associated with flow alternatives, while also explicitly incorporating sources of uncertainty. My research addresses this limitation using two modeling approaches: stochastic system dynamics modeling and Bayesian network modeling. I developed a stochastic system dynamics …

The End Of Sustainability, Melinda Harm Benson, Robin Kundis Craig

Publications

It is time to move past the concept of sustainability. The realities of the Anthropocene warrant this conclusion. They include unprecedented and irreversible rates of human-induced biodiversity loss, exponential increases in per-capita resource consumption, and global climate change. These factors combine to create an increasing likelihood of rapid, nonlinear, social and ecological regime changes. The recent failure of the Rio +20 provides an opportunity to collectively reexamine--and ultimately move past--the concept of sustainability as an environmental goal. We must face the impossibility of defining--let alone pursuing--a goal of "sustainability" in a world characterized by such extreme complexity, radical uncertainty and …

The Heck Conundrum: Why Federal Courts Should Not Overextend The Heck V. Humphrey Preclusion Doctrine, Lyndon Bradshaw

BYU Law Review

No abstract provided.

Mass Litigation Governance In The Post-Class Action Era: The Problems And Promise Of Non-Removable State Actions In Multi-District Litigation, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Given a string of decisions restricting the use and availability of the class action device, the world of mass litigation may well be moving into a post-class action era. In this era, newer devices of aggregation—perhaps principally among them multi-district litigation (“MDL”)—increasingly will be called upon to meet the age-old mass litigation goal of achieving global peace of numerous claims arising out of a related, widespread harm. Indeed, coordination of pretrial proceedings in the MDL frequently facilitates the achievement of this peace, given the reality that cases, once consolidated in the MDL, often settle en masse.

However, one clear obstacle …

The Practical Challenges Of Litigating And Trying A Claim For Attorney Fees To A Jury In Minnesota: Providing Minnesota’S District Court Judges, Lawyers, And Litigants The Guidance And Predictability They Need, S. Jamal Faleel

Hamline Law Review

abstract

Predicitive Coding: The New E-Discovery, Emmanuel Alvarez

Cornell Law School J.D. Student Research Papers

Predictive coding is currently the most efficient and cost effective method for electronic discovery. Predictive coding combines a good balance of human and computer components to continuously provide a set of seed documents to better assist and find conceptual relevance between potential discovery documents. The organization and method of topic categories reduces the costs for litigation overall. However, the continuous reasonableness standard used by the courts must still be met. With the more elaborate predictive coding, the court and small firms may have difficulty in judging whether the process was reasonable. This may cause potential hurdles, or even potentially changing …

Debt-Buyer Lawsuits And Inaccurate Data, Peter A. Holland

Faculty Scholarship

Pursuant to secret purchase and sale agreements (also known as forward flow agreements), the accounts that banks sell to debt buyers are often sold “as is,” with explicit and emphatic disclaimers that the debts may not be owed, the amounts claimed may not be accurate, and documentation may be missing. Despite their full knowledge that the accuracy and completeness of the data has been specifically disclaimed by the bank, when they sue consumers, debt buyers tell courts that the information obtained from the bank is inherently reliable and accurate. In order to avoid a fraud on the courts, the contents …

The Perils Of Productivity, Emily Spottswood

Scholarly Publications

This Essay urges that those who seek to minimize delay in litigation should proceed with greater caution. Productivity reform proponents usually assume that an increase in case processing speed can be purchased at little cost to other procedural values, but this may not be the case. Such reforms may lower the quality of lawyers’ case preparation and worsen the quality of judicial decisions. The extent of these effects is unclear because the proponents of such changes have not made an effort to establish that increases in speed can be achieved without undermining the accuracy of litigation outcomes. Relatedly, it is …

How Lawyers Manage Intragroup Dissent, Scott L. Cummings

Chicago-Kent Law Review

This essay, adapted from the keynote speech for the conference, reflects upon how lawyers respond to dissent within social movements—over the goals of social change efforts and the means of pursuing them. Drawing upon case studies from the LGBT rights and labor contexts, it describes specific challenges to managing dissent within “top-down” and “bottom-up” lawyering models. From the top-down, it explores how lawyers in the California marriage equality movement addressed repeated legal challenges over litigation tactics. From the bottom-up, it describes how lawyers for a community-labor coalition dealt with competing conceptions of the public good in a campaign to stop …

Capital Defenders As Outsider Lawyers, Kathryn A. Sabbeth

Chicago-Kent Law Review

What role can lawyers play in the internal disputes of a community to which they are outsiders? This essay highlights two core rationales for outsider intervention in support of internal dissent. It examines these rationales in the case of capital defenders from the U.S. North in the U.S. South. The position as an outsider can provide the will and freedom to launch direct attacks on injustice. Frequently, outsiders also bring superior resources for the fight. When outsiders engage in direct social critique, however, they can be accused of cultural imperialism. As an alternative, outsider lawyers can marshal indirect challenges, using …

Immutability And Innateness Arguments About Lesbian, Gay, And Bisexual Rights, Edward Stein

Chicago-Kent Law Review

A popular and intuitively plausible type of argument for the rights of lesbians, gay men, and bisexuals is based on claims that sexual orientations are inborn and/or unchangeable. Many advocates of such rights view expressing doubts about the immutability and innateness of sexual orientation as tantamount to opposing gay rights. Legally, claims that sexual orientations are innate and/or immutable intersect with the so-called immutability factor in equal protection jurisprudence. This article considers the legal, ethical, and empirical support for arguments for LGB rights based on immutability and innateness. I raise a variety of problems for such arguments in various contexts, …

The Two Faces Of Janus: The Jurisprudential Past And New Beginning Of Rule 10b-5, John Patrick Clayton

University of Michigan Journal of Law Reform

Section 10(b) of the Securities Exchange Act and its implementing Rule 10b-5 are the primary antifraud provisions for both private and public enforcement of the federal securities laws. Neither the statute nor the rule expressly provides for a private right of action, but federal courts have long recognized such an implied right, and the Securities and Exchange Commission has supported the implied private right of action as a “necessary supplement” to its own efforts. However, after a decade of applying an expansive interpretation to Section 10(b), in the early 1970s the U.S. Supreme Court began to narrowly interpret this implied …

Prospects And Problems Associated With Technological Change In Appellate Courts: Envisioning The Appeal Of The Future, Eric J. Magnuson, Samuel A. Thumma

The Journal of Appellate Practice and Process

No abstract provided.

Enhancing Efficiencies In The Appellate Process Through Technology, Joseph Delehanty, Yvan Llanes, Robert Rath, Danielle Sheff

The Journal of Appellate Practice and Process

No abstract provided.

The Paperless Court Of Appeals Comes Of Age, Philip G. Espinosa

The Journal of Appellate Practice and Process

No abstract provided.

Beyond The Verdict: Why The Courts Must Protect Jurors From The Public Before, During, And After High-Profile Cases, Scott Ritter

Indiana Law Journal

In a time when more and more criminal trials are saturated in news coverage, media outlets race to get as much information as possible to the public. That access to the criminal justice system is a right protected by the First Amendment. But where does the access stop? This Note explores those limits, and the intersection between the First and Fourth Amendments.