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Mdl In The States, Zachary D. Clopton, D. Theodore Rave 2021 Northwestern Pritzker School of Law

Mdl In The States, Zachary D. Clopton, D. Theodore Rave

Northwestern University Law Review

Multidistrict litigation (MDL) is exploding. MDL makes up a large and increasing portion of the federal civil docket. It has been used in recent years to manage and resolve some of our largest controversies: opioids, NFL concussions, Volkswagen “clean” diesel, and many more. And, given its growing importance, MDL has come to dominate the academic literature on complex litigation.

At its base, MDL is a tool to coordinate related cases across different courts in service of justice, efficiency, and fairness. These goals are not unique to the federal courts. State courts handle far more cases than federal courts, including the ...


Remote Court: Principles For Virtual Proceedings During The Covid-19 Pandemic And Beyond, Alicia L. Bannon, Douglas Keith 2021 Northwestern Pritzker School of Law

Remote Court: Principles For Virtual Proceedings During The Covid-19 Pandemic And Beyond, Alicia L. Bannon, Douglas Keith

Northwestern University Law Review

Across the country, courts at every level have relied on remote technology to adapt the justice system to a once-a-century global pandemic. This Essay describes and assesses this unprecedented journey into virtual justice, paying particular attention to eviction proceedings. While many judges have touted remote court as a revolutionary innovation, the reality is more complex. Remote court has brought substantial time savings and convenience to those who are able to access and use the required technology, but it has also posed hurdles to individuals on the other side of the digital divide, particularly self-represented litigants. The remote court experience has ...


Third-Party Standing And Abortion Providers: The Hidden Dangers Of June Medical Services, Elika Nassirinia 2021 Northwestern Pritzker School of Law

Third-Party Standing And Abortion Providers: The Hidden Dangers Of June Medical Services, Elika Nassirinia

Northwestern Journal of Law & Social Policy

Standing is a long held, judicially-created doctrine intended to establish the proper role of courts by identifying who may bring a case in federal court. While standing usually requires that a party asserts his or her own rights, the Supreme Court has created certain exceptions that allow litigants to bring suit on behalf of third parties when they suffer a concrete injury, they have a “close relation” to the third party, and there are obstacles to the third party's ability to protect his or her own interests. June Medical Services, heard by the Supreme Court on June 29, 2020 ...


No Child Was Harmed In The Making Of This Video: Morphed Child Pornography And The First Amendment, Taylor Comerford 2021 Boston College Law School

No Child Was Harmed In The Making Of This Video: Morphed Child Pornography And The First Amendment, Taylor Comerford

Boston College Law Review

On February 13, 2020, the Fifth Circuit Court of Appeals held, in United States v. Mecham, that the First Amendment does not protect morphed child pornography as a form of speech. The Fifth Circuit found that “morphed child pornography” is like “real child pornography” because the content harms the emotional health and reputation of a child. Thus, the Fifth Circuit held that the First Amendment excludes both forms of child pornography from protection. The Sixth and Second Circuits follow this rule, emphasizing that the government has a strong imperative to intervene in situations that harm children. In contrast, the Eighth ...


The Expansive Scope Of The Ministerial Exception After Our Lady Of Guadalupe School V. Morrissey-Berru, Allison R. Ferraris 2021 Boston College Law School

The Expansive Scope Of The Ministerial Exception After Our Lady Of Guadalupe School V. Morrissey-Berru, Allison R. Ferraris

Boston College Law Review

On July 8th, 2020, the United States Supreme Court held in Our Lady of Guadalupe School v. Morrissey-Berru that two parochial school teachers, Kristen Biel and Agnes-Morrissey-Berru, were ministers for purposes of the First Amendment’s ministerial exception. This meant that the First Amendment barred their respective employment discrimination actions notwithstanding the merit of their claims. When the Court first recognized the ministerial exception in 2012, in Hosanna-Tabor Evangelical Lutheran Church & School v. Equal Employment Opportunity Commission, it determined that an employee qualified as a minister through a multi-factor, totality of the circumstances analysis. Yet, in reaching its conclusion in ...


The Customer Is Always Right: Trademark Law And Generic Website Names In U.S. Patent And Trademark Office V. Booking.Com B.V., Marina F. Rothberg 2021 Boston College Law School

The Customer Is Always Right: Trademark Law And Generic Website Names In U.S. Patent And Trademark Office V. Booking.Com B.V., Marina F. Rothberg

Boston College Law Review

In 2020, in U.S. Patent and Trademark Office v. Booking.com B.V., the Supreme Court clarified that the owner of a website with a descriptive domain name could trademark the name, even if it were styled “generic.com,” as long as it had acquired secondary meaning to consumers. Justice Breyer, in his dissent, vigorously argued that this ruling would limit competition. He claimed that allowing Booking.com to trademark its brand name, which contains terms that competitors use to describe similar business activities, would essentially be giving it a monopoly. This Comment supports the majority’s decision, as ...


To Fee Or Not To Fee: The Availability Of Attorney’S Fees In Declaratory Relief Actions For Copyright Abandonment Under The Copyright Act, Katherine Goetz 2021 Boston College Law School

To Fee Or Not To Fee: The Availability Of Attorney’S Fees In Declaratory Relief Actions For Copyright Abandonment Under The Copyright Act, Katherine Goetz

Boston College Law Review

On May 13, 2020, in Doc’s Dream, LLC v. Dolores Press, Inc., the U.S. Court of Appeals for the Ninth Circuit held that a court has discretion under § 505 of the Copyright Act to award reasonable attorney’s fees in declaratory relief actions for copyright abandonment. In this matter of first impression, the Ninth Circuit reversed the U.S. District Court for the Central District of California’s holding that a declaratory relief action for copyright abandonment does not invoke the fee-shifting provision under the Copyright Act. This Comment argues that the Ninth Circuit’s holding appropriately reflects ...


Secrets, Secrets Are No Fun: Issues Of Publication Under The Foia Reading Room Provision, Kristen Daly 2021 Boston College Law School

Secrets, Secrets Are No Fun: Issues Of Publication Under The Foia Reading Room Provision, Kristen Daly

Boston College Law Review

What do teenagers, the Central Intelligence Agency, and the Coca-Cola Company have in common? Secrets. Social movements for less government secrecy have led to the implementation of mechanisms that ensure public distribution of information. One of these mechanisms is the Freedom of Information Act (FOIA). President Lyndon B. Johnson, when signing the FOIA, stated that “freedom of information is so vital that only the national security, not the desire of public officials or private collectors, should determine when it must be restricted.” It is therefore unsurprising that the FOIA provides a judicial remedy for when information has been improperly withheld ...


Restrain Your Enthusiasm: United States V. Taylor And Robbery Enhancement For Restraint Of A Victim, Madeline C. VerHey 2021 Boston College Law School

Restrain Your Enthusiasm: United States V. Taylor And Robbery Enhancement For Restraint Of A Victim, Madeline C. Verhey

Boston College Law Review

In February 2020, the Second Circuit held in United States v. Taylor that the Federal Sentencing Guidelines’ enhancement for physical restraint of a victim did not apply to a defendant who threatened a victim with a gun during a robbery. In reaching its decision, the court created a three-part test to determine when a defendant restrained a victim during a robbery. The Taylor test provides a much needed limitation on the scope of the enhancement--the application of which has expanded in the First, Fourth, and Tenth Circuits to defendants who did no more than briefly point a gun at a ...


Sharing More Than You Thought: Facebook Cannot Assert The Party Exception To Avoid Liability Under The Wiretap Act, Emily A. Jordan 2021 Boston College Law School

Sharing More Than You Thought: Facebook Cannot Assert The Party Exception To Avoid Liability Under The Wiretap Act, Emily A. Jordan

Boston College Law Review

On April 9, 2020, the United States Court of Appeals for the Ninth Circuit, in Davis v. Facebook, Inc. (In re Facebook), held that unauthorized third parties receiving simultaneous, direct copies of a party’s communication do not fall within the scope of the Party Exception of the Wiretap Act, 18 U.S.C. § 2510–2523. In doing so, the Ninth Circuit, based its holding on the legislative history and purpose of the Wiretap Act and reasoned that the Party Exception requires a narrow construction. Further, it held that to interpret the exception as inclusive of actors like Facebook risks ...


Confrontation's Multi-Analyst Problem, Paul F. Rothstein, Ronald J. Coleman 2021 Georgetown University Law Center

Confrontation's Multi-Analyst Problem, Paul F. Rothstein, Ronald J. Coleman

Georgetown Law Faculty Publications and Other Works

The Confrontation Clause in the Sixth Amendment affords the “accused” in “criminal prosecutions” the right “to be confronted with the witnesses against” them. A particular challenge for courts over at least the last decade-plus has been the degree to which the Confrontation Clause applies to forensic reports, such as those presenting the results of a DNA, toxicology, or other CSI-type analysis. Should use of forensic reports entitle criminal defendants to confront purportedly “objective” analysts from the lab producing the report? If so, which analyst or analysts? For forensic processes which require multiple analysts, should the prosecution be required to produce ...


A Comparison Of Public Defenders Vs. Private Attorneys, Tiffany Costello 2021 Merrimack College

A Comparison Of Public Defenders Vs. Private Attorneys, Tiffany Costello

Honors Senior Capstone Projects

This study seeks to determine whether there are any differences in conviction rates or client satisfaction between public defenders and private attorneys in state or federal courts. Although researchers have spent time examining differences between attorney type and client satisfaction or conviction rates, little information exists on the assessment of attorney type in the federal system. The study will consist of a two-part survey with approximately twenty-seven closed-ended questions about client satisfaction, conviction, court, and attorney type. The target population will be any criminal defendant in federal or state court with an attorney. In this study, the sampling method will ...


Tenth Circuit Ruled In Favor Of Sex-Plus-Age Claims Of Discrimination Under Title Vii In The Wake Of Bostock V. Clayton County, Kayla King 2021 Boston College Law School

Tenth Circuit Ruled In Favor Of Sex-Plus-Age Claims Of Discrimination Under Title Vii In The Wake Of Bostock V. Clayton County, Kayla King

Boston College Law Review

On July 21, 2020, the U.S. Court of Appeals for the Tenth Circuit in Frappied v. Affinity Gaming Black Hawk, LLC held that sex-plus-age discrimination claims are cognizable under Title VII of the Civil Rights Act of 1964. By taking a stance on the viability of sex-plus-age claims, the Tenth Circuit became the first circuit court to weigh in on the debate among the lower courts. Many federal district courts, relying on the availability of the Age Discrimination in Employment Act to address age discrimination claims, have rejected sex-plus-age claims under Title VII. This Comment argues that the Tenth ...


Death By Denial: Pre-Existing Conditions As A Bar To Accident Insurance Recovery, Madeleine M. Kausel 2021 Boston College Law School

Death By Denial: Pre-Existing Conditions As A Bar To Accident Insurance Recovery, Madeleine M. Kausel

Boston College Law Review

On February 4, 2020, the United States Court of Appeals for the First Circuit, in Arruda v. Zurich American Insurance Co., held that an insurance plan administrator’s denial of coverage was not an abuse of discretion because the plan participant’s pre-existing medical conditions contributed to his accidental death. The First Circuit rejected the “substantial factor” test and applied a plain meaning approach. In reaching this conclusion, the court split from the Fourth, Ninth, and Eleventh Circuits’ interpretations of ERISA-covered accident policies. This Comment argues that the First Circuit should have applied the substantial factor test because, unlike the ...


Blood Feud: Matheis And The Fight For Disability Rights, Evelyn L. A. Jackson 2021 Boston College Law School

Blood Feud: Matheis And The Fight For Disability Rights, Evelyn L. A. Jackson

Boston College Law Review

On August 30, 2019, the U.S. Court of Appeals for the Third Circuit in Matheis v. CSL Plasma, Inc. held that plasma donation centers are public accommodations under the Americans with Disabilities Act (ADA). In doing so, the court split from the Fifth Circuit Court of Appeals and joined the Tenth Circuit Court of Appeals in requiring plasma donation centers to reasonably accommodate their donors’ disabilities. This Comment argues that the Third Circuit was correct in holding that plasma donation centers are service establishments under Title III of the ADA as the text and legislative history indicate the statute ...


Sovereigns, Freemen, And Desperate Souls: Towards A Rigorous Understanding Of Pseudolitigation Tactics In United States Courts, Samuel Barrows 2021 Boston College Law School

Sovereigns, Freemen, And Desperate Souls: Towards A Rigorous Understanding Of Pseudolitigation Tactics In United States Courts, Samuel Barrows

Boston College Law Review

In recent years, American courts have seen a significant increase in legal filings displaying unusual markings and arguing groundless legal theories. These so-called “pseudolegal” filings are the product of an organized network of amateur legal scholars and con artists who represent an ongoing threat to the justice system. They waste judicial time and resources and encourage abuse of Uniform Commercial Code financing statements for the purpose of harassing others. This Note argues that, in order to combat pseudolaw, courts should make more aggressive use of available gatekeeping tools to screen out these filings. To effectively accomplish this task, courts will ...


The Elusive Zone Of Twilight, Michael Coenen, Scott M. Sullivan 2021 Seton Hall University Law School

The Elusive Zone Of Twilight, Michael Coenen, Scott M. Sullivan

Boston College Law Review

In his canonical concurring opinion in Youngstown Sheet & Tube Co. v. Sawyer, Justice Robert Jackson set forth a “tripartite” framework for evaluating exercises of presidential power. Regarding the middle category of that framework, Justice Jackson famously suggested that presidential actions undertaken “in absence of either a congressional grant or denial of authority” implicate “a zone of twilight,” within which “any actual test of power is likely to depend on the imperatives of events and contemporary imponderables rather than on abstract theories of law.” Since the articulation of this idea some seventy years ago, the Supreme Court has furnished little additional ...


“A Waiver Of The Trial Itself”: The Constitutional Threats Of Extending United States V. Mezzanatto And Contractual Solutions, Cherylann M. Pasha 2021 Boston College Law School

“A Waiver Of The Trial Itself”: The Constitutional Threats Of Extending United States V. Mezzanatto And Contractual Solutions, Cherylann M. Pasha

Boston College Law Review

Prosecutors and criminal defendants resolve most cases through plea agreements. Often these agreements contain waivers of Federal Rule of Criminal Procedure 11(f) and Federal Rule of Evidence 410, which prevent the admission of statements made during plea discussions into evidence at criminal trial. In 1995, the U.S. Supreme Court in United States v. Mezzanatto held that such waivers are enforceable for impeachment purposes. Numerous U.S. Circuit Courts of Appeals have extended this holding by permitting the use of these statements for the prosecution’s rebuttal and case-in-chief. This Note asserts that the extension of Mezzanatto threatens the ...


Reply ‘Stop’ To Cancel: Whether Receiving One Unwanted Marketing Text Message Confers Standing In Federal Court, Curtis R. Crooke 2021 Boston College Law School

Reply ‘Stop’ To Cancel: Whether Receiving One Unwanted Marketing Text Message Confers Standing In Federal Court, Curtis R. Crooke

Boston College Law Review

On August 28, 2019, the United States Court of Appeals for the Eleventh Circuit, in Salcedo v. Hanna, created a split regarding whether the receipt of a text message in violation of the Telephone Consumer Protection Act of 1991 (TCPA) confers standing to sue. The TCPA contains prohibitions on the use of telephonic equipment for telemarketing purposes, which the Federal Communications Commission (FCC) has interpreted to include text messaging. The Act also provides a private right of action for citizens to sue for violations if they have standing, meaning, in part, that they have suffered an injury. In Salcedo, the ...


Vertical Control, Herbert J. Hovenkamp 2021 University of Pennsylvania Law School

Vertical Control, Herbert J. Hovenkamp

Faculty Scholarship at Penn Law

Antitrust litigation often requires courts to consider challenges to vertical “control.” How does a firm injure competition by limiting the behavior of vertically related firms? Competitive injury includes harm to consumers, labor, or other suppliers from reduced output and higher margins.

Historically antitrust considers this issue by attempting to identify a market that is vertically related to the defendant, and then consider what portion of it is “foreclosed” by the vertical practice. There are better mechanisms for identifying competitive harm, including a more individualized look at how the practice injures the best placed firms or bears directly on a firm ...


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