Litigation Commons^™

Plausible Screening: A Defense Of Twombly And Iqbal's Plausibility Pleading, Michelle Kallen

Richmond Journal of Law and the Public Interest

Part I of the article describes the vision of the 1938 reformers and the changes to the litigation landscape since. Part II describes the Twombly and Iqbal cases in relation to prior pleading standards. Part III builds on Twombly and Iqbal's language to set forth an account of plausibility pleadings that addresses the problems with today's system of litigation. Part IV describes some of the major critiques to plausibility pleading and explains why these critiques do not pose a threat to the account of plausibility pleading set forth in Part III.

Thoughts On Preemption In The Wake Of The Levine Decision, Erika Fisher Lietzan, Sarah E. Pitlyk

Journal of Health Care Law and Policy

No abstract provided.

Unlawful Infringement Or Just Creative Expression? Why Dj Girl Talk May Inspire Congress To "Recast, Transform, Or Adapt" Copyright, 43 J. Marshall L. Rev. 1067 (2010), Katie Simpson-Jones

UIC Law Review

No abstract provided.

Exiting Litigation, Jay Tidmarsh

Loyola University Chicago Law Journal

No abstract provided.

The Importance Of Being Ambiguous: Substantive Canons, Stare Decisis, And The Central Role Of Ambiguity Determinations In The Administrative State, Brian G. Slocum

Maryland Law Review

No abstract provided.

Scientific Fraud, Paul C. Giannelli

Faculty Publications

Although scientific fraud is rare, when it occurs, it needs to be identified and documented. This article discusses two of the most notorious cases in forensic science. Part I focuses on the misconduct of Fred Zain, a serologist with the West Virginia State Police crime laboratory and later with the County Medical Examiner’s laboratory in San Antonio, Texas. Part II examines the misconduct of Joyce Gilchrist, a forensic examiner with the Oklahoma City Police Department.

Forensic Science: Why No Research?, Paul C. Giannelli

Faculty Publications

The National Academy of Sciences ground-breaking report on forensic science – Strengthening Forensic Science in the United States: A Path Forward – raised numerous issues. One dominant theme that runs throughout the Report is the failure of some forensic science disciplines to comport with fundamental scientific principles – in particular, to support claims with empirical research. The Report observed that “some forensic science disciplines are supported by little rigorous systematic research to validate the discipline’s basic premises and techniques. There is no evident reason why such research cannot be conducted.”

The Report went on to identify fingerprint examinations, firearms (ballistics) …

Comparative Bullet Lead Analysis: A Retrospective, Paul C. Giannelli

Faculty Publications

For over thirty years, FBI experts testified about comparative bullet lead analysis (CBLA), a technique that was first used in the investigation into President Kennedy’s assassination. CBLA compares trace chemicals found in bullets at crime scenes with ammunition found in the possession of a suspect. This technique was used by the FBI when firearms (“ballistics”) identification could not be employed – for example, if the weapon was not recovered or the bullet was too mutilated to compare striations. Although the FBI eventually ceased using CBLA, the Bureau’s conduct in first employing the technique and then defending it after it was …

Independent Crime Laboratories: The Problem Of Motivational And Cognitive Bias, Paul C. Giannelli

Faculty Publications

One of the most controversial recommendations in the National Academy of Sciences report on forensic science — Strengthening Forensic Science in the United States: The Path Forward — concerns the removal of crime laboratories from the administrative control of law enforcement agencies. For decades scholars have commented on the “inbred bias of crime laboratories affiliated with law enforcement agencies.” Some commentators have proposed independent laboratories as the remedy for this problem, and in 22, the Illinois Governor’s Commission on Capital Punishment proposed the establishment of an independent state crime laboratory. This essay documents the problems that triggered the NAS Report’s …

Empaneling The Peers Of Polluters: Obtaining A Jury Trial Under The Opa And Cercla As Explained In United States V. Viking Resources, Inc., Addison J. Schreck

Kentucky Journal of Equine, Agriculture, & Natural Resources Law

No abstract provided.

Adverse Inference About Adverse Inferences: Restructuring Juridical Roles For Responding To Evidence Tampering By Parties To Litigation, Dale A. Nance

Faculty Publications

For at least two centuries, Anglo-American courts have responded to a party's evidence tampering by allowing the opponent to argue to jurors that they should draw an adverse inference against the offending party in deciding the merits of the case. This Article argues that the use of such inferences, and invitations to draw them, should be radically curtailed, not only because of the ambiguities and risks of prejudice that such inferences entail, but more importantly because they reflect and contribute to a confusion of roles in which the jury is enlisted to participate in the management of the pre-trial conduct …

The Potential Contribution Of Adr To An Integrated Curriculum: Preparing Law Students For Real World Lawyering, John M. Lande, Jean R. Sternlight

Faculty Publications

This Article briefly reviews the long history of critiques of legal education that highlight the failure to adequately prepare students for what they will and should do as attorneys. It takes a sober look at the hurdles reformers face when trying to make significant curricular changes and proposes a modest menu of reforms that interested faculty and law schools can largely achieve without investing substantial additional resources.This Article emphasizes the special contributions that alternative dispute resolution (ADR) can provide to legal education more generally. ADR instruction is an important corrective to a curriculum that routinely conveys the erroneous implication that …

A Decision-Theoretic Rule Of Reason For Minimum Resale Price Maintenance, Thom Lambert

Faculty Publications

This article evaluates these approaches from the perspective of decision theory and, finding each lacking, proposes an alternative approach to structuring the rule of reason governing RPM. Part II sets forth the decision-theoretic perspective, which seeks to maximize the net benefits of liability rules by minimizing the sum of decision and error costs. Part III then evaluates, from the standpoint of decision theory, the proposed approaches to evaluating instances of RPM. Part IV proposes an alternative evaluative approach that is more consistent with decision theory’s insights.

Playing Nice: The Dos And Don'ts Of Courtroom Etiquette, Maureen A. Howard

Articles

No matter how brilliant the lawyer, impressive her credentials, thorough her case preparation, or razor-sharp her analytic skills, she risks damaging her case — and her reputation — if she fails to comply with basic courtroom etiquette. There are certain dos and don’ts of courtroom behavior that are understood by seasoned trial lawyers and expected from judges. There are also common courtesies expected by jurors of lawyers who are viewed as professional and credible. A lawyer will undoubtedly learn these behavioral norms in the trenches over time, but she is well advised to have a courtroom etiquette checklist in her …

Liar! Liar! Impeaching A Witness On Cross-Examination, Maureen A. Howard

Articles

There are certain trial moments that can set an advocate’s heart a-flutter. One is the opportunity to show the jury that an adverse witness is not to be trusted. Even better is the chance to expose the witness to be a bald-faced liar.

Welcome to the wonderful world of impeachment. Impeachment is the art of discrediting the witness on cross-examination. There are seven impeachment techniques:

• Bias, interest, and motive

• Contradictory facts

• Prior convictions — FRE 609

• Prior bad acts — FRE 608 (b)

• Prior inconsistent statements — FRE 613

• Bad character for truthfulness — …

Mastering Foolproof Witness Control On Cross-Examination, Maureen A. Howard

Articles

In the wonderfully entertaining and instructive video, The Ten Commandments of Cross-Examination, the late Irving Younger offered this appraisal of lawyers’ ability to conduct cross-exam: “Most lawyers do it badly all the time, no lawyer does it well all the time, and no lawyer in the early stages of his career does it well at all.” Happily, we’ve come a long way since Younger’s grim 1975 assessment, due to the instruction of maestros like Younger, Terrence McCarthy (McCarthy on Cross-Examination), and Larry Pozner and Roger Dodd (Cross-Examination: Science and Techniques). All too often, however, lawyers …

Closing Argument: Connecting The Dots For The Jury, Maureen A. Howard

Articles

A common error made by unseasoned attorneys when giving closing argument is retelling the “story” of their case. Storytelling is best used in opening statement, not closing argument. By the time the jurors hear closing argument, they are well acquainted with the story, because they have heard two opening statements and all the evidence.

Closing argument, as the name suggests, is instead the time to argue. This means that in addition to revisiting the theme(s) presented in opening statement, a lawyer may use rhetorical questions, draw conclusions and inferences from the evidence, discuss the credibility of the witness, examine the …

Opening Statement: Persuading Without Argument, Maureen A. Howard

Articles

A basic rule of trial practice is that a lawyer cannot argue in opening statement. A lawyer who breaks this rule runs the risk of drawing an objection from opposing counsel and having it sustained by the judge. Of course, as with most rules of trial practice, a lawyer can get away with de minimus violations in most cases and wholesale disregard in cases where opposing counsel—whether as a result of inexperience, inattention or trial strategy—doesn’t object. Although simple in concept, lawyers commonly falter in practical application of the “no argument” rule in two ways: 1) failing to understand what …

Compelling The Courts To Question Gonzalez V. O Centro: A Public Harms Approach To Free Exercise Analysis, Ari B. Fontecchio

Richmond Public Interest Law Review

Part I will set forth the analytical framework established by the Supreme Court in the RFRA and RLUIPA contexts before 0 Centro." This Part will provide a brief background to RFRA and RLUIPA and set forth the definition of "compelling interest" before 0 Centro. Part II will focus on the decision in 0 Centro; specifically, how the Supreme Court's redefinition of "compelling interest" significantly elevates the government's burden. Part III will compare the government's chance of winning on a "compelling interest" argument before 0 Centro" with the chance of winning in its wake. This Part will discuss the merits, flaws, …

Kesalahan-Kesalahan Matrimoni Dalam Kes Perceraian Di Luar Mahkamah Dan Tanpa Kebenaran Mahkamah : Kajian Di Mahkamah Syariah Negeri Selangor Darul Ehsan., Mazlan Abd Manan

Student Works (2010-2019)

There is no specific nas (justification) provided in the Al-Quran and the Al-Sunnah with regards to divorce outside the Court without due permission. However, over the years this ongoing problem has led the scholars to view their justifications on the matter. In view of this, the purpose of this dissertation is to feature the study on divorce cases outside Court and without the Court’s permission and its implementation to Malaysian law specifically in reference to cases from the Syariah Courts in Selangor. The Selangor Islamic Family Law Enactment 1984 for instance, as proposed by the Syariah Court has come up …

Rethinking Summary Judgment: Revamp Required?., Mak Mun Luan

Student Works (2010-2019)

Summary judgment has been touted as an effective tool for disposing of litigations in timely and cost effective manners, as disputes between litigants may be resolved without the need of full trials and the usual pre-trial processes associated with civil litigation. However, the tension between the potential for this procedure to produce a final judgment versus the litigants' entitlements to full trials, illustrates how reform in this procedure may be crucial. This paper sought to outline the current laws with regards to summary judgment in Malaysia and explore ways in which it may be revamped. For comparison, summary judgment procedures …

Six Decrees Of Separation: Settlement Agreements And Consent Orders In Federal Civil Litigation, Anthony Disarro

American University Law Review

No abstract provided.

Theorizing And Litigating The Rights Of Sexual Minorities, Nancy Levit

Faculty Works

One of the best measures of a society is how it treats its vulnerable groups. A central idea in Professor Martha Nussbaum's writings is that all humans "are of equal dignity and worth, no matter where they are situated in society." The strategic challenge in lesbian, gay, bisexual and transgendered (LGBT) rights litigation is how to get courts to see sexual minorities as people worthy of equal dignity and respect. This article focuses on the roles of a positive emotion - love - and a procedural method of proof - science - in the shaping of laws defining the rights …

Whose Burden Is It Anyway? Addressing The Needs Of Content Owners In Dmca Safe Harbors, Greg Janson

Federal Communications Law Journal

Much of today's network neutrality debate addresses concerns that cable providers will limit access to competing Web-based services delivering multimedia content. While proposals to mandate nondiscrimination for all Internet traffic surely will help create a competitive environment where online entertainment providers can prosper, ISP interference is not the only threat. Online entertainment sites that relay user-generated content are threatened by crippling litigation brought by copyright holders for actions taken by third parties using their services. Reliance on the safe harbors provided in the Digital Millennium Copyright Act has, in most cases, proved unsuccessful. This Note addresses the concerns of both …

Against Secret Regulation: Why And How We Should End The Practical Obscurity Of Injunctions And Consent Decrees (Symposium: Rising Stars: A New Generation Of Scholars Looks At Civil Justice), Margo Schlanger

Articles

Every year, federal and state courts put in place orders that regulate the prospective operations of certainly hundreds and probably thousands of large government and private enterprises. Injunctions and injunction-like settlement agreements-whether styled consent decrees, settlements, conditional dismissals, or some other more creative title-bind the activities of employers, polluters, competitors, lenders, creditors, property holders, schools, housing authorities, police departments, jails, prisons, nursing homes, and many others. The types of law underlying these cases multiply just as readily: consumer lending, environmental, employment, anti-discrimination, education, constitutional, and so on. Injunctive orders, whether reached by litigation or on consent, suffuse the regulatory environment, …

Optimizing Private Antitrust Enforcement, Daniel A. Crane

Articles

Private litigation is the predominant means of antitrust enforcement in the United States. Other jurisdictions around the world are increasingly implementing private enforcement models. Private enforcement is usually justified on either compensation or deterrence grounds. While the choice between these two goals matters, private litigation is not very effective at advancing either one. Compensation fails because the true economic victims of most antitrust violations are usually downstream consumers who are too numerous and remote to locate and compensate. Deterrence is ineffective because the time lag between the planning of the violation and the legal judgment day is usually so long …

Does Monopoly Broth Make Bad Soup?, Daniel A. Crane

Articles

There is an oft-repeated maxim in U.S. antitrust law that a monopolist's conduct must be examined in its totality in order to determine its legality. Judges admonish that plaintiffs "should be given the full benefit of their proof without tightly compartmentalizating the various factual components and wiping the slate clean after scrutiny of each." As the U.S. Court of Appeals for the Seventh Circuit stated in much-quoted language, "It is the mix of various ingredients ... in a monopoly broth that produces the unsavory flavor."' In this article, I examine the use and misuse of monopoly broth theories. Reflecting a …

The Economics Of Public Nuisance Law And The New Enforcement Actions, Keith N. Hylton

Faculty Scholarship

In contrast to the traditional legal commentary, I find nuisance law to be a coherent body of rules that serves an explainable function. Nuisance optimally regulates activity levels. Nuisance law induces actors to choose socially optimal activity levels by imposing liability when externalized costs are far in excess of externalized benefits or far in excess of background external costs. The new enforcement actions for lead paint abatement or gun control purposes have an arguable theoretical basis in nuisance law. However, as currently framed, the lawsuits are inconsistent with significant parts of the doctrine and the theory.

Corporate Law In The Shanghai People's Courts, 1992-2008: Judicial Autonomy In A Contemporary Authoritarian State, Nicholas C. Howson

Articles

In late 2005 China adopted a largely rewritten Company Law that radically increased the role of courts. This study, based on a review of more than 1000 Company Law-related disputes reported between 1992 and 2008 and extensive interactions with PRC officials and sitting judges, evaluates how the Shanghai People's Court system has fared over 15 years in corporate law adjudication. Although the Shanghai People's Courts show generally increasing technical competence and even intimations of political independence, their path toward institutional autonomy is inconsistent. Through 2006, the Shanghai Court system demonstrated significantly increased autonomy. After 2006 and enactment of the new …

Did We Avoid Historical Failures Of Antitrust Enforcement During The 2008-2009 Financial Crisis?, Daniel A. Crane

Articles

During both economic crises and wars, times of severe national anxiety, antitrust has taken a back seat to other political and regulatory objectives. Antitrust enforcement has often been a political luxury good, consumed only during periods of relative peace and prosperity. In 1890, the Sherman Act's adoption kicked off the era of national antitrust enforcement. Barely three years later, the panic of 1893 provided the first major test to the national appetite for antitrust enforcement. Perhaps 1893 should not be included in the story: antitrust was still young, and it was not even clear that the Sherman Act applied to …