Litigation Commons^™

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Undoing Undue Influence: How The Doctrine Can Avoid Judicial Subjectivity By Omitting The Vulnerability Element, Robin Boyle-Laisure

Faculty Publications

(Excerpt)

The utility of the doctrine of undue influence has been declining for several decades because of its inclusion of the element of vulnerability or, put another way, inquiry into the mind of the one allegedly being influenced. I argue that the courts’ inquiry into the mind of the influencee to determine whether this person was vulnerable is not a useful construct as an element of the doctrine. This Article addresses three contexts in which assessing one’s vulnerability is problematic: (1) in the contract formation process occurring in the general population (meaning not within a high-control group), such as the …

Time To Slapp Back: Advocating Against The Adverse Civil Liberties Implications Of Litigation That Undermines Public Participation, Jennifer Safstrom

Vanderbilt Law School Faculty Publications

Defamation law is a catchall term encompassing civil claims for reputational harm to an individual, including slander and libel. Defamation claims originated in English common law and have since evolved within the American legal system. Scholars have characterized the law of defamation as “a forest of complexities, overgrown with anomalies, inconsistencies, and perverse rigidities” and as a “‘fog of fictions, inferences, and presumptions.’” Amid these inherent variations and complexities of defamation law and litigation — including the largely state-specific nature of tort law development — emerges a disturbing trend across jurisdictions. In the modern era, defamation claims have been used …

Data Versus More Data In Multidistrict Litigation, Elizabeth Chamblee Burch

Scholarly Works

A reply to Lynn A. Baker & Andrew Bradt, Anecdotes in the Search for Truth About Multidistrict Litigation, 107 Cornell Law Review Online 249 (2023).

Perceptions of Justice in Multi-district Litigation: Voices from the Crowd presents the results of a study that no one wanted us to do—or help us to do. Professors Lynn Baker and Andrew Bradt would prefer to dismiss as “anecdote” our two-year effort to find and gain the trust of multi-district litigation (MDL) plaintiffs whose attorneys told them not to discuss their case with anyone, including us.

There are decades worth of procedural justice studies …

Mdl For The People, Elizabeth Chamblee Burch

Scholarly Works

By the terms of its own statute and the limits of its constitutional authority, multidistrict litigation (“MDL”) is designed to transfer and coordinate individual lawsuits then return plaintiffs back to their chosen fora for case-specific discovery and trial. Because each plaintiff is present and has her own lawyer, there is no need for the judge to police conflicts of interest or attorney loyalty as in the MDL’s kin, the class action.

But these assumptions do not match the empirical reality. Remand is rare. MDL judges resolve ninety-nine percent of the cases before them. And to some attorneys, the people of …

The Business Of Securities Class Action Lawyering, Jessica M. Erickson, Stephen J. Choi, Adam C. Pritchard

Law Faculty Publications

Plaintiffs’ lawyers in the United States play a key role in combating corporate fraud. Shareholders who lose money as a result of fraud can file securities class actions to recover their losses, but most shareholders do not have enough money at stake to justify overseeing the cases filed on their behalf. As a result, plaintiffs’ lawyers control these cases, deciding which cases to file and how to litigate them. Recognizing the agency costs inherent in this model, the legal system relies on lead plaintiffs and judges to monitor these lawyers and protect the best interests of absent class members. Yet …

Public Law Litigation And Electoral Time, Zachary D. Clopton, Katherine Shaw

Articles

Public law litigation is often politics by other means. Yet scholars and practitioners have failed to appreciate how public law litigation intersects with an important aspect of politics-electoral time. This Essay identifies three temporal dimensions of public law litigation. First, the electoral time of government litigants-measured by the fixed terms of state and federal executive officials-may affect their conduct in litigation, such as when they engage in midnight litigation in the run-up to and aftermath of their election. Second, the electoral time of state courts-measured by the fixed terms of state judges-creates openings for strategic behavior among litigants (both public …

The City Suit, Zachary D. Clopton, Nadav Shoked

Emory Law Journal

This Article addresses the role of local governments in the most American of activities: the lawsuit. During the last few decades, city litigation has grown more proactive, diverse, and prominent. Cities now frequently file lawsuits respecting the most notable issues of the day. Each of these suits involves specific policy concerns peculiar to its subject matter, but as a group—as a legal phenomenon—they all raise common, and disputed, doctrinal questions pertaining to standing, local preemption, res judicata, state immunity, and more.

When tackling these diverse doctrinal issues—sounding in both civil procedure and local government law—courts and scholars have failed to …

Interpleader As A Vehicle For Challenging The Constitutionality Of Private Citizen Action Statutes, Delia Parker

Fordham Law Review

The rise of vigilante-esque statutes creates obstacles for litigants seeking to challenge a statute’s constitutionality. State legislatures in Texas and California enacted laws regulating constitutionally protected activity (abortion and firearm possession, respectively) through statutes enforced solely by private actors. The state legislatures cleverly crafted Texas S.B. 8, as well as other copycat statutes, as bounty hunter statutes to block litigants’ usual path to pre-enforcement adjudication—filing a claim against the state to enjoin its actors from enforcing the improper provisions.

The Texas and California state legislatures attempted to forbid constitutionally protected conduct by granting enforcement power to an infinite number of …

A Survey Of The Literature On Federal Appellate Practice And Procedure, Thomas E. Baker

FIU Law Review

This is a survey of the literature related to appellate practice and procedure before the United States Courts of Appeals for the benefit of lawyers and judges and scholars. It is reproduced with permission from THOMAS E. BAKER, A PRIMER ON THE JURISDICTION OF THE U.S. COURTS OF APPEALS (Fed. Jud. Ctr. 3d ed. 2023) available at: https://www.fjc.gov/content/379899/primer-jurisdiction-us-courts-appeals-third-edition). This origin explains the scattered references in the entries to “this Primer.”

When To Be Objectionable… And How Not To Be An Artless Clay-Brained Pignut, Leonard Niehoff

Articles

Having taught evidence for more than 30 years. I've become fairly good at predicting the questions students will ask, especially the questions that are hardest to answer. One of those typically comes after we've discussed how to object to evidence. We've worked through the basics: Stand up, speak up, say that you object, and briefly explain why. At this point a student almost always raises his or her and says something like this: "OK. I understand the how part. But when do I object?"

Strategic Litigation In Wartime: Judging The Russian Invasion Of Ukraine Through The Genocide Convention, Michael Ramsden

Vanderbilt Journal of Transnational Law

Ukraine's recent initiation of legal proceedings against Russia under the Genocide Convention is a prominent example of what has been termed "strategic litigation," denoting the bringing of a case with a goal to produce a wider impact beyond the courtroom. In Allegations of Genocide (Ukraine v. Russia), Ukraine sought a series of declarations from the International Court of Justice (ICJ) that Russia's decision to use force in Ukraine, and its ongoing operation, was unlawful, insofar as such a decision rested on the prevention of genocide. Given that the ICJ does not have the jurisdiction to determine whether Russia has committed …

Law Libraries And Sustainability Of Judicial Precedent In Nigerian Legal System, Emmanuel Owushi Dr

Library Philosophy and Practice (e-journal)

The study adopted descriptive study to examine law libraries and sustainability of judicial precedent in Nigerian legal system. The population involved legal educators, law librarians and practitioners in four States in different geopolitical zones of Nigeria, namely Rivers State, Lagos State, Benue State, and Anambra State. Due to the large population, the study employed multi-stage of balloting and random sampling techniques to sample 100 respondents each from the selected states. Out of the 400 samples, 389 respondents responded correctly to the questionnaire, indicating a 97.3 percent response rate. A self-designed questionnaire was utilized and means score was used to answer …

2023 Update: A Water Rights Manual For Mutual Domestic Water Consumers Associations, Utton Center, Zackeriah Carpenter, Gregory Chakalian, Darcy S. Bushnell

Publications

This is the 2023 update of the Water Rights Manual. The archival version is also available in our digital repository. 

The Utton Center prepared this Water Rights Manual to assist Mutual Domestic Water Consumers Associations (MDWCAs) with the development, protection and management of their water rights.

This manual provides an introduction to and defines Water Rights in New Mexico, as well as to acquire and have recognized Water Rights. This document also covers water management and planning, and provides additional resources.

Apology As An Intellectual Property Remedy In China: A Preliminary Examination Of American Litigation Experiences, Robert H. Hu

Faculty Articles

Seeking and receiving an apology from the wrongdoer is a ubiquitous social phenomenon in Chinese culture and society. In recent years, litigation and apologies appear to be natural elements of contemporary life in China. Apologies as a legal remedy in Chinese laws and regulations have become prevalent for nearly four decades. In particular, in intellectual property law, the last thirty years have witnessed an explosion of apology cases. In such litigation, plaintiffs seek (and sometimes obtain) apologies from the defendants as a statutory remedy besides injunction and damages. American businesses operating in China increasingly take to the Chinese courts to …

Three Ways To Sit Under A Shady Grove: The Uncertain Future Of The Oklahoma Citizens Participation Act In Federal Court, Nicholas Rinehart

Oklahoma Law Review

No abstract provided.

The Oligarchic Courthouse: Jurisdiction, Corporate Power, And Democratic Decline, Luke P. Norris, Helen Hershkoff

Law Faculty Publications

Jurisdiction is foundational to the exercise of a court’s power. It is precisely for this reason that subject matter jurisdiction today has come to the center of a struggle over corporate power and the regulatory state. Corporations have sought to manipulate forum choice to wear out less-resourced parties and circumvent hearings on the merits, along the way insulating themselves from laws that seek to govern their behavior. Corporations have done so by making creative arguments to lock plaintiffs out of court and push them into arbitration, and failing that, to lock plaintiffs into federal court rather than state court or …

Good Representatives, Bad Objectors, And Restitution In Class Settlements, Jay Tidmarsh, Tladi Marumo

Journal Articles

his Article uses two recent decisions -one prohibiting incentive awards to class representatives and one permitting disgorgement of side payments to class objectors - to explore deeper connections between class­action settlements and the law of restitution. The failure to correctly apply the law of restitution led both courts astray. First, courts can approve incentive awards, as long as an award properly reflects the benefit that the representative's efforts bestowed on the class. Second, restitution provides a basis to disgorge improper side payments to objectors, but only under conditions different from those that the court described. More broadly, attention to the …

Different Countries, Same Homophobia And Transphobia: A Cross-Cultural Survey Of So-Called Conversion Therapy Practices And The Move Toward Legislative Protections For The United States Lgbtq+ Community, Samantha J. Past

Brooklyn Journal of International Law

So-called “conversion therapy” consists of dangerous practices that inflict detrimental, long-lasting effects on its victims. As a form of sexual orientation or gender identity or gender expression change efforts, conversion therapy is fostered by global homophobia and transphobia. Despite formal public rejection and scientific discreditation, conversion therapy providers across the world continue to target LGBTQ+ individuals, predominately under the guise of offering health care services or obeying religious practices. The following piece compares conversion therapy in three countries with recently introduced LGBTQ+ legislation––(1) Ghana; (2) Canada; and (3) the United States (U.S.)–––in order to identify factors furthering conversion therapy and …

Contracting Against Slavery: Corporate Accountability For Human Rights Supply Chain Violations, Alexandra Hyken

Brooklyn Journal of International Law

The United States Supreme Court decision in Nestlé USA, Inc. v. Doe effectively closed the door for forced laborers in the global supply chain to sue corporations headquartered in the United States for aiding and abetting in their human trafficking under the Alien Tort Statute. At the same time, however, the European Union and Canada are passing legislative measures that increase corporate accountability for human rights supply chain violations. This note argues that, in light of the Nestlé decision, contracts can be an effective mechanism for corporate accountability in the United States and that multi-national corporations will be incentivized to …

Overqualified And Underrepresented: Gender Inequality In Pharmaceutical Patent Law, S. Sean Tu, Paul R. Gugliuzza, Amy Semet

Journal Articles

Pharmaceutical patents represent some of the most valuable intellectual property assets in the world: they can be worth billions of dollars if courts uphold their validity and find them infringed. But, if invalidated, generic drug manufacturers can get to market earlier, generating billions of dollars of revenue for themselves and creating enormous savings for consumers. Accordingly, drug patents are the product of careful, high-cost prosecution and are associated with high-stakes, bet-the-company litigation. But women lawyers are noticeably absent from pharmaceutical patent practice. This article reports an original empirical study finding that women comprise only one-third of the top pharmaceutical patent …

Fixing "Litigating The Fix", Steven C. Salop, Jennifer E. Sturiale

Georgetown Law Faculty Publications and Other Works

Merging firms have increasingly been asking trial courts to adjudicate their merger “as remedied” by a voluntary “fix.” These are remedies that have been rejected by (or never proposed to) the agency. This procedure is known as Litigating-the-Fix” (“LTF”). This article proposes a judicial procedure for managing cases in which the merging parties attempt to LTF. Our recommendations flow from a decision theory approach informed by the relevant LTF case law, the merger enforcement record, the language and goals of Section 7, and an economic analysis of the incentives of the parties and agencies created by LTF. Our recommendation addresses …

Liability For Public Deception: Linking Fossil Fuel Disinformation To Climate Damages, Jessica A. Wentz, Benjamin Franta

Sabin Center for Climate Change Law

Over two dozen U.S. states and municipalities have filed lawsuits against fossil fuel companies, seeking abatement orders and compensation for climate damages based on theories such as public nuisance, negligence, and failure to warn, and alleging these companies knew about the dangers of their products, intentionally concealed those dangers, created doubt about climate science, and undermined public support for climate action. This Article examines how tort plaintiffs can establish a causal nexus between public deception and damages, drawing from past litigation, particularly claims filed against manufacturers for misleading the public about the risks of tobacco, lead paint, and opioids. A …

Spac Attack, Justin Kuehn

University of Arkansas at Little Rock Law Review

No abstract provided.

Top Ten Issues In De-Spac Securities Litigation, Wendy Gerwick Couture

University of Arkansas at Little Rock Law Review

I am delighted to contribute to this symposium on special purpose acquisition companies (SPACs). The securities litigation associated with the de-SPAC transaction is at an early stage, but courts are already wrestling with a number of unsettled issues that cast a mirror on SPACs and the securities laws more broadly. As these issues are resolved, they will affect the future of de-SPAC transactions as well as the regulatory environment in which they operate. In this essay, I identify ten such issues, drawing from the pleadings, briefings, and hearings in pending de-SPAC securities cases, with the goal of highlighting the key …

When Uncle Sam Spills: A State Regulator’S Guide To Enforcement Actions Against The Federal Government Under The Clean Water Act, Ian M. Staeheli

Washington Law Review

The U.S. government is one of the largest polluters on the planet. With over 700 domestic military bases and countless more federal facilities and vessels operating within state borders, there exists an enormous potential for spills and discharges of pollutants into state waters. The regulatory burden for enforcing environmental laws against the federal government falls on the Environmental Protection Agency and state regulators. But enforcing laws and regulations against the federal government and its progeny is a daunting regulatory task.

Other scholarship addresses some of the vexing peculiarities involved when regulating Uncle Sam. Those works discuss the “confusing mess” that …

The Helicopter State: Misuse Of Parens Patriae Unconstitutionally Precludes Individual And Class Claims, Gabrielle J. Hanna

Washington Law Review

The doctrine of parens patriae allows state attorneys general to represent state citizens in aggregate litigation suits that are, in many ways, similar to class actions and mass-tort actions. Its origins, however, reflect a more modest scope. Parens patriae began as a doctrine allowing the British king to protect those without the ability to protect themselves, including wards and mentally disabled individuals. The rapid expansion of parens patriae standing in the United States may be partly to blame for the relative absence of limiting requirements or even well-developed case law governing parens patriae suits. On the one hand, class actions …

Trial Practice And Procedure, Joseph M. Colwell, Christopher B. Mcdaniel

Mercer Law Review

This Article addresses selected opinions and legislation of interest to the Georgia civil trial practitioner issued during the Survey period of this publication.

Abusing Discretion: The Battle For Childhood In Schools, Hannah Dodson

Michigan Journal of Race and Law

For too many children the schoolhouse doors become a point of entry into the criminal justice system. Children of color are the most likely to suffer from this phenomenon. The presence of policing in schools is a key contributor to this “school-to-prison pipeline.” This Note argues that broad, discretionary mandates for school resource officers (SROs) promote biased law enforcement that impacts Black girls in different and specific ways. I contend that SRO mandates can be effectively limited by strategically bolstering community organizing efforts with impact litigation.

From Experiencing Abuse To Seeking Protection: Examining The Shame Of Intimate Partner Violence, A. Rachel Camp

Georgetown Law Faculty Publications and Other Works

Shame permeates the experience of intimate partner violence (IPV). People who perpetrate IPV commonly use tactics designed to cause shame in their partners, including denigrating their dignity, undermining their autonomy, or harming their reputation. Many IPV survivors report an abiding sense of shame as a result of their victimization—from a lost sense of self, to self-blame, to fear of (or actual) social judgment. When seeking help for abuse, many survivors are directed to, or otherwise encounter, persons or institutions that reinforce rather than mitigate their shame. Survivors with marginalized social identities often must contend not only with the shame of …