Litigation Commons^™

Electronic Discovery And The Constitution: Inaccessible Justice, Jennifer M. Smith

Journal Publications

Computers are the cynosure of American society. As a result, most information is stored electronically and only a small amount of information ever becomes a paper document. This explosion of electronically stored information has affected every aspect of society, including the court system. Litigation is drastically different than a few years ago due to this onset of electronically stored information. The discovery of electronically stored information in litigation has become known as electronic discovery. For many, electronic discovery is expensive and complicated, and thus, litigants are settling frivolous cases to avoid the costs and complexities of engaging in discovery to …

Forum Non Conveniens On Appeal: The Case For Interlocutory Review, Cassandra Burke Robertson

Faculty Publications

Court-access doctrine in transnational litigation is plagued by uncertainty. Without a national court-access policy, federal courts often reach inconsistent forum non conveniens decisions even on very similar facts. This inconsistency is compounded by the district court’s largely unreviewable discretion in making those forum-access decisions, which precludes effective resolution of these conflicts through the appellate process. As a result, the law underlying the forum non conveniens doctrine remains unsettled, creating systemic inefficiency both in litigation procedure and in regulatory policy.

This article, prepared for the symposium “Our Courts and the World: Transnational Litigation and Civil Procedure,” argues that expanding appellate review …

A Question Of Taste: Touchstones For Determining The Certifiability Of Classwide Claims For Declaratory And Injunctive Relief Under Rule 23 Of The Federal Rules Of Civil Procedure, Randy D. Gordon

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Claim Accrual Under The Federal Tort Claims Act: When Should Claimants File Suit Against The Federal Bureau Of Investigation For Tort Liability, Caitlin A. Romasco

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Firearms Identification: The Need For A Critical Approach To, And Possible Guidelines For, The Admissibility Of Ballistics Evidence, Bonnie Lanigan

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Swept Under The Rug: The Brady Disclosure Obligation In A Pre-Plea Context, Daniel Conte

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Closing The Loophole In Massachusetts Protection Order Legislation To Provide Greater Security For Victims Of Sexual Assault: Has Massachusetts General Laws Chapter 258e Closed It Enough, Hayley Jodoin

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Cafa's Impact On Forum Shopping And The Manipulation Of The Civil Justice System, Kalee Difazio

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Constitutional Law - In Protecting One's Right To Speak, The First Amendment Also Protects One's Right To Lie - 281 Care Committee V. Arneson, 638 F.3d 621 (8th Cir. 2011), Jaclyn Mcneely

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Criminal Law - Use Of Equitable Tolling To Enforce Violations Of Supervised Release After Original Term Has Expired - United States V. Buchanan, 638 F.3d 448 (4th Cir. 2011), Eric Speed

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Outpatient Commitment: The Role Of Counsel In Preserving Client Autonomy, R. A. Bernfeld

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

The Disadvantaged Plaintiff: Is It Time To Revisit The Foreign Sovereign Immunities Act, Matthew Engellenner

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Constitutional Law - Revising The Application Of Tinker And Fraser In The Age Of The Internet - J.S. Ex Rel. Snyder V. Blue Mountain School District, 650 F.3d 915 (3d Cir. 2011), Christopher Lynett

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Criminal Law - Failed The Breathalyzer: Just Contest The Location Of The Stop - Commonwealth V. Virgilio, 947 N.E.2d 1112 (Mass. App. Ct. 2011), Jillise Ketcham

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Criminal Law - New Evidence In Gateway Claim Of Actual Innocence Requires Evidence Not Previously Available At Trail - Kidd V. Norman, 651 F.3d 947 (8th Cir. 2011), David Cashman

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Constitutional Law - Seventh Circuit Denies Sovereign Immunity Defense To Counterclaims For Appealing State Agency - Board Of Regents Of The University Of Wisconsin System V. Phoenix International Software, Inc., 653 F.3d 448 (7th Cir. 2011), Daniel S. Tyler

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Changes In The European Union's Regime Of Recognizing And Enforcing Judgments And Transnational Litigation In The United States, Samuel P. Baumgartner

Akron Law Faculty Publications

The European Commission has proposed to amend (recast) the Brussels I Regulation, which governs jurisdiction to adjudicate, parallel proceedings, and judgments recognition within the European Union. Although much of the Brussels I Regulation is simply the 1968 Brussels Convention cast into European Union legislation, the proposed amendments are part of a deeper set of structural and conceptual changes in the law of transnational litigation within the Union over the past couple of decades. Understanding these changes is essential to understanding what drives the proposed amendments and what is likely to follow.

In this paper – presented at the symposium Our …

Rejecting Sovereign Immunity In Public Law Litigation, Howard M. Wasserman

Faculty Publications

No abstract provided.

Plausibility Pleading And Employment Discrimination, Suzette M. Malveaux

Publications

No abstract provided.

Five Mistakes For New Child-Welfare Lawyers To Avoid, Jennifer Baum

Faculty Publications

(Excerpt)

You’ve graduated, passed the bar, and started your first legal job working with children and families. Perhaps you work for an institutional provider of legal services for children or as a prosecutor of dependency cases, or perhaps you are defending such cases. Perhaps, still, you are in private practice, and this is your first pro bono experience working on a family or juvenile court matter. Whatever your role, your job is the same: to represent your client and seek as favorable an outcome as possible.

But you are new—you don’t know the ropes or who the players are, you …

The Evolution Of The Summary Trial: A Flexible Tool To Meet A Variety Of Needs, Paula Hannaford-Agor, Nicole L. Waters

Faculty Publications

Are summary jury trials a viable forum for dispute resolution? The National Center for State Courts studied summary trials in six state courts to understand how these programs work and to determine the benefits and detriments of this approach to dispute resolution.

The Underappreciated Importance Of The Sequence In Which The Issues Are Addressed In Contract Litigation, Gregory S. Crespi

Faculty Journal Articles and Book Chapters

Judicial opinions rarely identify the precise sequence in which the issues presented were addressed by the court. Since this sequence is not generally regarded as being significant for the decisions reached, persons later parsing the opinions for their significance rarely go to the considerable trouble involved in acquiring the litigation briefs and interviewing the attorneys and judges involved so as to ascertain this sequence. However, my surmise is that at least in contract litigation the sequence in which the issues are addressed can sometimes be significant or even outcome-determinative for the results. A good example of this is presented by …

Play Through The Whistle: The Scope Of Anti-Retaliation Protection For Employee Complaints Pursuant To Erisa Section 510, James Coughlin

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Raise Or Lose: Appellate Discretion And Principled Decision-Making, Tory A. Weigand

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Is Canada The New Shangri-La Of Global Securities Class Actions?, Tanya J. Monestier

Journal Articles

There has been significant academic buzz about Silver v. Imax, an Ontario case certifying a global class of shareholders alleging statutory and common law misrepresentation in connection with a secondary market distribution of shares. Although global class actions on a more limited scale have been certified in Canada prior to Imax, it can now be said that global classes have “officially” arrived in Canada. Many predict that the Imax decision means that Ontario will become the new center for the resolution of global securities disputes. This is particularly so after the United States largely relinquished this role in Morrison v. …

Arbitrability And Vulnerability, Carolyn L. Dessin

Akron Law Faculty Publications

Arbitration is cool. Everybody‟s doing it. In the eighty-five years since the passage of the Federal Arbitration Act, that seems to be the prevailing sentiment. Recent decades have seen the meteoric rise of arbitration as a form of alternative dispute resolution. Arbitration is widely regarded as a less expensive, more expeditious alternative to litigation.

Courts frequently note that federal policy clearly favors arbitration. No judicial enthusiasm for arbitration seems more complete than that evidenced in the jurisprudence of the United States Supreme Court.

Along with the rise of arbitration, however, there has also been a rise in the amount of …

The Character Of The Governmental Action, Thomas W. Merrill

Faculty Scholarship

Penn Central Transportation Co. v. New York City holds a secure position in the architecture of the regulatory takings doctrine. That doctrine is at bottom a tool for distinguishing between different governmental powers; in particular, between the power of eminent domain and the police power. Because eminent domain requires that compensation be paid, whereas the police power does not, it is necessary to draw a line between these powers. Conceivably we could simply take the legislature at its word as to which power it is exercising. But at least since Pennsylvania Coal Co. v. Mahon, the Supreme Court has insisted …

Aggregate Litigation Goes Public: Representative Suits By State Attorneys General, Margaret H. Lemos

Faculty Scholarship

State attorneys general represent their citizens in aggregate litigation that bears a striking resemblance to the much-maligned damages class action. Yet, while class actions are subject to a raft of procedural rules designed to protect absent class members, equivalent suits in the public sphere are largely free from constraint. The procedural disconnect between the two categories of aggregate litigation reflects a widespread assumption that attorneys general will adequately represent the interests of the state’s citizens, obviating any need for case-specific mechanisms for assuring the loyalty of lawyer to client.

This Article challenges the presumption of adequate public representation. By conflating …

Japan's Love For Derivative Actions: Irrational Behavior And Non-Economic Motives As Rational Explanations For Shareholder Litigation, Dan W. Puchniak, Masafumi Nakahigashi

Vanderbilt Journal of Transnational Law

Not long ago, there was a consensus in the legal academy that the Japanese were irrational litigants. As the theory went, Japanese people would forgo litigating for financial gain because of a cultural obsession with maintaining social harmony. Based on this theory, it made perfect (but economically irrational) sense that Japanese shareholders let their U.S.-transplanted derivative action lay moribund for almost four post-war decades, while at the same time the derivative action was a staple of shareholder litigation in the United States.

The 1980s brought a wave of law and economics to the scholarship of Japanese law, which largely discredited …

Managing Summary Judgment, Steven S. Gensler, Lee Rosenthal

Faculty Articles

No abstract provided.