Litigation Commons^™

The Transformation Of Indirect Harassment In The 21st Century: Harassment Telephone Laws, Cyberbullying, And New Ways Of Analyzing First Amendment Rights, Brian S. Brazeau

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Constitutional Law - Sticks & Stones May Break My Bones, But The First Amendment Will Protect Me: Federal Court Of Appeals Upholds Unconstitutionality Of The Lanham Trade-Mark Act's Sec. 2(A) Disparaging Provision As A Violation Of First Amendment Rights - In Re Tam, 808 F.3d 1321 (Fed. Cir. 2015), Kimberly T. Aquino

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Proving Hate: The Difficulties Of Successfully Prosecuting Bias-Motivated Crimes, Shirin Afsous

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Table Of Contents, Jtaa Editors

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.

Making It Up: Lessons For Equal Protection Doctrine From The Use And Abuse Of Hypothesized Purposes In The Marriage Equality Litigation, Steve Sanders

Articles by Maurer Faculty

To survive rational basis scrutiny under the Equal Protection Clause, a law must serve a governmental purpose which is at least legitimate. It is well established that legitimate purposes can sometimes be found through speculation and conjecture-that is, they may be hypothesized-in order to avoid the difficulties of identifying actual purpose or the specter of courts second-guessing legislative judgments. But hypothesized purposes can be abused, and such abuse was rampant in the states' defenses of their bans on same-sex marriage, bans which were ultimately invalidated in Obergefell v. Hodges.

This Article draws on the federal marriage litigation as a lens …

12 Angry Men V. The Agency: Why Preemption Should Resolve This Conflict In Drug Labeling Litigation, Michelle L. Richards

Marquette Law Review

The Supreme Court has found in favor of preemption in tort liability cases involving matters of heavy federal regulation in which Congress has delegated implementation of a statute involving technical subject matter to the agency. It has not been the case, however, in matters concerning the labeling of prescription drugs, despite the fact that the FDA has exclusively regulated drug labeling for more than a century. In fact, the current state of affairs now allows a jury to substitute the judgment of the FDA in approving a label on a name-brand drug for their own in state law failure to …

Perpetual Evolution: A School's-Focused Public Law Litigation Model For Our Day, James S. Liebman

Faculty Scholarship

In celebrating the monumental accomplishments of the new form of public law litigation that Constance Baker Motley and her colleagues pioneered, this Essay reinterprets their paradigm-shifting body of work in a manner that obliges the current generation of civil rights advocates to change direction. In the hopes of reengaging the affirmative force of constitutional litigation after decades in which it has waned, this Essay argues that the central lesson to be derived from Motley’s generation lies not in the mode of public law litigation it pioneered but in the design of that litigation in the image of the dominant form …

Terrorist Watchlists, Jeffrey D. Kahn

Faculty Journal Articles and Book Chapters

This chapter assesses the legal history and policy development of the U.S. government's system of terrorist watchlists and the institutions established to create and use them. Watchlisting is in fact an old practice given new meaning by technological change and the societal impact of the September 11, 2001, terrorist attacks. Statutes and judicial precedents from an earlier era on which the first post-9/11 watchlists were built were not made to regulate the expanded uses of the new watchlists and presented few if any constraints on their development. Civil litigation has both revealed the inner workings of terrorist watchlists and spurred …

From Systemic Risk To Financial Scandals: The Shortcomings Of U.S. Hedge Fund Regulation, Marco Bodellini

Brooklyn Journal of Corporate, Financial & Commercial Law

In the recent past, hedge funds have demonstrated that they can pose and spread systemic risk across the financial markets, and that their managers can use them to commit fraud and misappropriation of fund assets. Even if the first issue now seems to be considered a serious one by the U.S. legislature, which in 2010, as a legislative response to the global financial crisis of 2007-2008, enacted the Dodd-Frank Act Wall Street Reform and Consumer Protection Act (Dodd-Frank), the current regulation still appears inconsistent and inappropriate to prevent and face it. By contrast, the second issue is not always considered …

A Bridge Too Far: A Critical Analysis Of The Securities And Exchange Commission's Approach To Equity Market Regulation, John Polise

Brooklyn Journal of Corporate, Financial & Commercial Law

Using the framework articulated by Thomas S. Kuhn in his book, The Structure of Scientific Revolutions, this Article traces the evolution of equity market regulation in terms of its epistemological foundations and operative paradigms. It examines the SEC’s growth from a more passive partner with the securities industry to being an aggressive and perhaps overly intrusive arbiter of equity market operations. This Article identifies two distinct paradigms of securities regulation—the “Self-Regulatory Paradigm” and the “Micro-Intervention Paradigm.” The Self-Regulatory Paradigm and the Micro-Intervention Paradigm are not compatible, and this Article explains how the intellectual dissonance between them ultimately allowed the Micro-Intervention …

Lowering The Threshold: How Far Has The Americans With Disabilities Act Expanded Access To The Courts In Employment Litigation?, Curtis D. Edmonds

Journal of Law and Policy

The purpose of the Americans with Disabilities Act Amendments Act (“ADAAA”) was to restructure and clarify the definition of the legal term “disability” in the Americans with Disabilities Act of 1990 (“ADA”). One of the three prongs of the ADA’s definition of disability is “a physical or mental impairment that substantially limits one or more major life activities of such individual.” The ADAAA was the result of a compromise reached after thirteen weeks of negotiations between representatives of the business and disabilities communities over its provisions. Like many other compromises, the ADAAA did not leave either side fully satisfied. Almost …

Beyond Walls And Fences: Exploring The Legal Geography Of Gated Communities In Mixed Spaces, Manal Totry-Jubran

Journal of Law and Policy

In the last three decades, a new type of physical seclusion has appeared around the world: the gating and walling of urban and suburban spatial residences. This phenomenon, led mainly by dominant socio-economic groups, is referred to as “gated communities.” This article focuses on the legal challenges that gated communities raise in ethnocratic societies that share a legacy of segregation and of unequal distribution of land. The main argument is that, due to this legacy, the legality of gated communities and walls that separate communities generate legal debates that goes beyond classic legal claims of rights violations of non-residents of …

Fighting For Fair Fares In New York City Through Civil Society Enforcement Of Title Vi, Sara Amri

Journal of Law and Policy

Low-income New Yorkers rely heavily on public transportation to travel around the city. However, riding the New York City subway system is becoming increasingly unaffordable. New York City’s Metropolitan Transit Authority (MTA) has set forth plans to implement semiannual fare increases. No alleviation has been provided, however, to New Yorkers living at or below the federal poverty level, despite the discounts provided to other groups regardless of their income. The inability to travel can have a devastating impact on the upward mobility of poor New Yorkers, and, alarmingly, fare increases appear to have a disparate impact on low-income people of …

Legislatively Mandating A Cba Is Not The Way: A Case Study Of Detroit’S Proposed Community Benefits Ordinance And Its Constitutionality Under The Takings Clause Of The Fifth Amendment, Colyn Eppes

Journal of Law and Policy

Community Benefit Agreements, or CBAs, have quickly become a useful tool to ensure that the benefits reaped from large-scale urban development projects are shared among all stakeholders, particularly the community in which the development takes place. In exchange for the local community’s support, which is critical to the developer to progress through the permit application process efficiently, the developer contractually agrees to provide a slate of benefits to the affected community. CBAs have been lauded for their ability to require developers to promote affordable housing, first-source hiring programs, and other targeted benefits which the host community contracted for. However, one …

Ballot Selfies: Balancing The Right To Speak Out On Political Issues And The Right To Vote Free From Improper Influence And Coercion, Isidora Koutsoulias

Journal of Law and Policy

Courts and legislatures face the difficult task of balancing individual First Amendment rights with other basic freedoms, a task that has become increasingly challenging with the advent of new technology. The emergence of the ballot selfie has caused a legal uproar due to the perception that it may compromise the sanctity of the electoral process and the secret ballot process by facilitating vote buying and coercion. Consequently, several states have enacted laws that prohibit most or all ballot selfies. However, many individuals have rightfully protested these laws as an unreasonable restraint on freedom of speech. This Note argues that although …

Lowering The Threshold: How Far Has The Americans With Disabilities Act Expanded Access To The Courts In Employment Litigation?, Curtis D. Edmonds

Journal of Law and Policy

The purpose of the Americans with Disabilities Act Amendments Act (“ADAAA”) was to restructure and clarify the definition of the legal term “disability” in the Americans with Disabilities Act of 1990 (“ADA”). One of the three prongs of the ADA’s definition of disability is “a physical or mental impairment that substantially limits one or more major life activities of such individual.” The ADAAA was the result of a compromise reached after thirteen weeks of negotiations between representatives of the business and disabilities communities over its provisions. Like many other compromises, the ADAAA did not leave either side fully satisfied. Almost …

Beyond Walls And Fences: Exploring The Legal Geography Of Gated Communities In Mixed Spaces, Manal Totry-Jubran

Journal of Law and Policy

In the last three decades, a new type of physical seclusion has appeared around the world: the gating and walling of urban and suburban spatial residences. This phenomenon, led mainly by dominant socio-economic groups, is referred to as “gated communities.” This article focuses on the legal challenges that gated communities raise in ethnocratic societies that share a legacy of segregation and of unequal distribution of land. The main argument is that, due to this legacy, the legality of gated communities and walls that separate communities generate legal debates that goes beyond classic legal claims of rights violations of non-residents of …

Fighting For Fair Fares In New York City Through Civil Society Enforcement Of Title Vi, Sara Amri

Journal of Law and Policy

Low-income New Yorkers rely heavily on public transportation to travel around the city. However, riding the New York City subway system is becoming increasingly unaffordable. New York City’s Metropolitan Transit Authority (MTA) has set forth plans to implement semiannual fare increases. No alleviation has been provided, however, to New Yorkers living at or below the federal poverty level, despite the discounts provided to other groups regardless of their income. The inability to travel can have a devastating impact on the upward mobility of poor New Yorkers, and, alarmingly, fare increases appear to have a disparate impact on low-income people of …

Legislatively Mandating A Cba Is Not The Way: A Case Study Of Detroit’S Proposed Community Benefits Ordinance And Its Constitutionality Under The Takings Clause Of The Fifth Amendment, Colyn Eppes

Journal of Law and Policy

Community Benefit Agreements, or CBAs, have quickly become a useful tool to ensure that the benefits reaped from large-scale urban development projects are shared among all stakeholders, particularly the community in which the development takes place. In exchange for the local community’s support, which is critical to the developer to progress through the permit application process efficiently, the developer contractually agrees to provide a slate of benefits to the affected community. CBAs have been lauded for their ability to require developers to promote affordable housing, first-source hiring programs, and other targeted benefits which the host community contracted for. However, one …

Taking A Second Look At Mdl Product Liability Settlements: Somebody Needs To Do It, Christopher B. Mueller

Publications

This Article examines the forces that lead to the settlement of product liability cases gathered under the MDL statute for pretrial. The MDL procedure is ill-suited to this use, and does not envision the gathering of the underlying cases as a means of finally resolving them. Motivational factors affecting judges and lawyers have produced these settlements, and the conditions out of which they arise do not give confidence that they are fair or adequate. This Article concedes that MDL settlements are likely here to stay, and argues that we need a mechanism to check such settlements for fairness and adequacy. …