The Parable Of The Forms,
2020
St. John's University School of Law
The Parable Of The Forms, Samuel L. Bray
St. John's Law Review
(Excerpt)
It might be good for each department to have its own form, or it might be better to have one form for the whole campus. That is an open question. It depends on how different the repair requests are in different departments, and on the value of specialization. It depends on whether we want some complexity about the choice of forms or if we want radical simplicity about the number of forms, with all of the complexity residing within a single form.
So, too, it might be good to have different forms of action. That way, everyone knows upfront …
Supervisors Without Supervision: Colon, Mckenna, And The Confusing State Of Supervisory Liability In The Second Circuit,
2020
Washington and Lee University School of Law
Supervisors Without Supervision: Colon, Mckenna, And The Confusing State Of Supervisory Liability In The Second Circuit, Ryan E. Johnson
Washington and Lee Law Review
This Note received the 2019 Washington and Lee Law Council Law Review Award.
This Note analyzes two intra-Second Circuit splits that make it nearly impossible for prisoners to recover against supervisors under § 1983. First, district courts in the Second Circuit are divided as to whether the five categories of personal involvement defined in Colon v. Coughlin survive the Supreme Court’s decision in Ashcroft v. Iqbal. Personal involvement by the supervisory defendant is a necessary element to impose supervisory liability. Some district courts hold that only the first and third Colon factors survive Iqbal, while others hold that all …
Personal Jurisdiction And National Sovereignty,
2020
Peking University School of Transnational Law
Personal Jurisdiction And National Sovereignty, Ray Worthy Campbell
Washington and Lee Law Review
State sovereignty, once seemingly sidelined in personal jurisdiction analysis, has returned with a vengeance. Driven by the idea that states must not offend rival states in their jurisdictional reach, some justices have looked for specific targeting of individual states as individual states by the defendant in order to justify an assertion of personal jurisdiction. To allow cases to proceed based on national targeting alone, they argue, would diminish the sovereignty of any state that the defendant had specifically targeted.
This Article looks for the first time at how this emphasis on state sovereignty limits national sovereignty, especially where alien defendants …
Horseshoes And Hand Grenades: Frank V.Gaos And The Problem With Class Action Cy Pres Distributions,
2020
University of Miami Law School
Horseshoes And Hand Grenades: Frank V.Gaos And The Problem With Class Action Cy Pres Distributions, Jorge Galavis
University of Miami Business Law Review
Nearly Just
Frank v. Gaos is a case that weighed the merits of cy pres, a pesky complex doctrine left applied to my dismay. When in class action settlements, there are remaining funds, Defendants seem to benefit from what the Plaintiffs won.
Worse still the doctrine is applied in cases such as this; when direct payments to a class are deemed de minimus. Counsel decided class members were fine with what they got, Then phoned their favorite charities to divvy the whole pot.
Once courts agree that’s close enough to benefit the class, They seem to turn a blind eye …
In Re Government Attorney-Client Privilege: A Categorical Rule To Settle The Issue,
2020
Washington and Lee University School of Law
In Re Government Attorney-Client Privilege: A Categorical Rule To Settle The Issue, Luke Charette
Washington and Lee Law Review Online
This Note explores the reasoning and factors used by each of the federal circuits in deciding whether or not to uphold attorney-client privilege between the government and the lawyers representing it. After considering those factors, this Note argues that there should be a categorical rule that neither a state nor the federal government may invoke the attorney-client privilege in response to a criminal grand jury subpoena. To justify this conclusion, this Note outlines how current government attorney-client privilege case law, as well as the policy underpinnings of the privilege itself, dictate that a categorical rule is appropriate.
The Story Of A Class: Uses Of Narrative In Public Interest Class Actions Before Certification,
2020
The Ohio State University Moritz College of Law
The Story Of A Class: Uses Of Narrative In Public Interest Class Actions Before Certification, Anne E. Ralph
Washington Law Review
When litigants in public interest class actions tell their stories, the narratives can advance the law and influence public debate. But before class members’ stories can vindicate civil rights on the merits, plaintiffs must overcome the hurdle of class certification.
For decades, obtaining class certification under Federal Rule of Civil Procedure 23 was not a significant challenge for plaintiffs seeking to litigate as a class. But recent restrictive procedural developments—including heightened standards for class certification—threaten the powerful stories that can be told through public interest class actions.
Missing in the critical analysis of class action jurisprudence is any discussion of …
Berberich V. Bank Of America, 136 Nev. Ad. Op (Mar. 26, 2020),
2020
University of Nevada, Las Vegas -- William S. Boyd School of Law
Berberich V. Bank Of America, 136 Nev. Ad. Op (Mar. 26, 2020), Amelia Mallette
Nevada Supreme Court Summaries
The Supreme Court of Nevada considered whether a quiet title action from a foreclosure sale was barred by NRS 11.080 because Berberich was in possession of the property for five years before commencing the action. The Court held that the limitations period outlined in NRS 11.080 will not run against an owner who is in undisputed possession of the land.
Deciding, ‘What Happened?’ When We Don’T Really Know: Finding Theoretical Grounding For Legitimate Judicial Fact-Finding,
2020
Dalhousie University Schulich School of Law
Deciding, ‘What Happened?’ When We Don’T Really Know: Finding Theoretical Grounding For Legitimate Judicial Fact-Finding, Nayha Acharya
Articles, Book Chapters, & Popular Press
The crucial question for many legal disputes is “what happened,”? and there is often no easy answer. Fact-finding is an uncertain endeavor and risk of inaccuracy is inevitable. As such, I ask, on what basis can we accept the legitimacy of judicial fact-findings. I conclude that acceptable factual determinations depend on adherence to a legitimate process of fact-finding. Adopting Jürgen Habermas’s insights, I offer a theoretical grounding for the acceptability of judicial fact-finding. The theory holds that legal processes must embody respect for legal subjects as equal and autonomous agents. This necessitates two procedural features. First, fact-finding processes must be …
Putting The Notice Back Into Pleading,
2020
Brooklyn Law School
Putting The Notice Back Into Pleading, Robin Effron
Faculty Scholarship
No abstract provided.
Notice Pleading In Exile,
2020
Texas A&M University School of Law
Notice Pleading In Exile, Adam N. Steinman
Faculty Scholarship
According to the conventional wisdom, the Supreme Court's 2009 decision in Ashcroft v. Iqbal discarded notice pleading in favor of plausibility pleading. This Article — part of a symposium commemorating the Iqbal decision's tenth anniversary — highlights decisions during those ten years that have continued to endorse notice pleading despite Iqbal. It also argues that those decisions reflect the best way to read the Iqbal decision. Although Iqbal is a troubling decision in many respects, it can be implemented consistently with the notice-pleading framework that the original drafters of the Federal Rules of Civil Procedure had in mind.
Janus-Faced Rulemaking,
2020
Seattle University School of Law
2020 Mlk Keynote Address: Michelle Alexander Presentation,
2020
Rhode Island School of Design
2020 Mlk Keynote Address: Michelle Alexander Presentation, Center For Social Equity & Inclusion, Michelle Alexander, Rosanne Somerson, Matthew Shenoda
Martin Luther King, Jr. Series
2020 MLK Series Keynote Michelle Alexander brings audiences profoundly necessary and meaningful insights on the practice of mass incarceration that plagues the US justice system, as well as eye-opening conversation on how we can end racial caste in America. Lecture Wednesday, January 22, 2020 at 5:30pm, RISD Auditorium, 17 Canal Walk, Providence, RI.
In her acclaimed bestseller The New Jim Crow: Mass Incarceration in the Age of Colorblindness, Alexander peels back the curtain on systemic racism in the US prison system in a work that the New York Review of Books describes as "striking in the intelligence of her …
Unfit To Parent: American And Jewish Legal Perspectives,
2020
Touro University Jacob D. Fuchsberg Law Center
Unfit To Parent: American And Jewish Legal Perspectives, Michoel Zylberman, Karen K. Greenberg, Daniel Pollack
Touro Law Review
No abstract provided.
The Constitutionality Of Nationwide Injunctions,
2020
Washington and Lee University School of Law
The Constitutionality Of Nationwide Injunctions, Alan M. Trammell
Scholarly Articles
Opponents of nationwide injunctions have advanced cogent reasons why courts should be skeptical of this sweeping remedy, but one of the arguments is a red herring: the constitutional objection. This Essay focuses on the narrow question of whether the Article III judicial power prohibits nationwide injunctions. It doesn’t.
This Essay confronts and dispels the two most plausible arguments that nationwide injunctions run afoul of Article III. First, it shows that standing jurisprudence does not actually speak to the scope-of-remedy questions that nationwide injunctions present. Second, it demonstrates that the Article III judicial power is not narrowly defined in terms of …
Institutional Loyalty And The Design Of Partisan Gerrymandering Adjudication In The Federal Courts,
2020
University of Cincinnati College of Law
Institutional Loyalty And The Design Of Partisan Gerrymandering Adjudication In The Federal Courts, Michael E. Solimine
Faculty Articles and Other Publications
In 2019 the Supreme Court held in Rucho v. Common Cause that challenges in federal court to partisan gerrymandering were nonjusticiable political questions. Writing for the 5-4 majority, Chief Justice John Roberts expressed concern that frequently deciding such cases would politicize the Court itself. Such expressions seem to fit well within the characterization of the Chief Justice as an institutionalist concerned with the legitimacy and reputation of the federal courts. This article addresses how the unique design and procedures of gerrymandering litigation in federal courts ought to inform such institutional loyalty arguments. Those features include that such cases are litigated …
A New State Registration Act: Legislating A Longer Arm For Personal Jurisdiction,
2020
Case Western University School of Law
A New State Registration Act: Legislating A Longer Arm For Personal Jurisdiction, Charles W. (Rocky) Rhodes, Cassandra Burke Robertson
Faculty Publications
In a sextet of recent decisions, the Roberts Court upended the longstanding framework for general and specific contacts-based personal jurisdiction. The Court's new approach has engendered uncertainty and erected insurmountable obstacles for some plaintiffs in locating an effective forum to vindicate their rights. We propose a novel solution to the injustices and unpredictability unleashed by these decisions: a new model corporate registration act that would require, as a condition of doing business in a state, the corporation's consent to personal jurisdiction in defined circumstances that implicate state sovereign regulatory, protective, and prescriptive interests.
Registration-based consent to jurisdiction has a long …
Preserving The Nationwide National Government Injunction To Stop Illegal Executive Branch Activity,
2020
Washington and Lee University School of Law
Preserving The Nationwide National Government Injunction To Stop Illegal Executive Branch Activity, Doug Rendleman
Scholarly Articles
The Trump Administration’s extravagant claims of executive power have focused the federal courts’ attention on separation of powers, judicial review, and equitable jurisdiction to grant broad injunctions that forbid the administration’s violations of the Constitution and federal statutes. Critics question the federal courts’ power to grant broad injunctions that are effective everywhere. These critics maintain, among other things, that the federal courts lack jurisdiction and that broad injunctions improperly affect nonparties and militate against “percolation” of issues in a variety of courts.
This Article examines the critics’ arguments and finds them unconvincing. Accepting the critics’ arguments would rebalance the separation …
Standing In Between Sexual Violence Victims And Access To Justice: The Limits Of Title Ix,
2020
California Western School of Law
Standing In Between Sexual Violence Victims And Access To Justice: The Limits Of Title Ix, Hannah Brenner Johnson
Faculty Scholarship
Sexual violence proliferates across communities, generally, and is especially prevalent in places like colleges and universities. As quasi-closed systems, colleges and universities are governed by their own internal norms, policies, and federal laws, like Title IX of the Education Amendments of 1972, which address how sex discrimination must be handled in institutions of higher education that are in receipt of federal funds. Title IX focuses on all facets of sex discrimination including reporting, investigation, adjudication, and prevention. When schools are accused of failing to adequately respond to reports of sexual misconduct on their campuses, Title IX has been interpreted by …
Rethinking The Conflicts Revolution In Personal Jurisdiction,
2020
University of South Carolina - Columbia
Rethinking The Conflicts Revolution In Personal Jurisdiction, Jesse M. Cross
Faculty Publications
It is widely acknowledged that, from roughly 1940 to 1970, a revolution occurred in Conflicts of Law. Referred to as the “Conflicts revolution,” this movement remade nearly every legal test in the field. According to conventional wisdom, this revolution rejected the same idea in each instance: namely, that Conflicts tests should be grounded in a theory of sovereignty. Instead, the argument goes, it pivoted the field to pragmatic tests that focus on practicality, fairness, and convenience.
As this Article explains, this conventional wisdom is incorrect. It misunderstands the intellectual revolution that remade the field, and it has generated needless confusion …
Halliburton Ii At Four: Has It Changed The Outcome Of Class Certification Decisions?,
2020
Loeb & Loeb LLP
Halliburton Ii At Four: Has It Changed The Outcome Of Class Certification Decisions?, Noah Weingarten
Fordham Journal of Corporate & Financial Law
The U.S. Supreme Court's decision in Halliburton Co. v. Erica P. John Fund, Inc., 573 U.S. 258 (2014) (Halliburton II) appeared to give corporate defendants a new tool to defeat class certification in the context of securities fraud class action litigation: rebutting the requisite presumption of reliance by showing a lack of "price impact"-a term that Halliburton II used to describe whether the price of an allegedly affected company's stock went up or down. However, based on an empirical study of pre- versus post-Halliburton II class certification decisions, it appears that the outcomes of class certification decisions have become even …
