Litigation Commons^™

Litigating In The 21st Century: Amending Challenges For Cause In Light Of Big Data, Andrew Kasabian

Pepperdine Law Review

The amount of data generated daily is growing exponentially. The majority of this data is unstructured data. Big Data analytics provides the capability to analyze sets of unrelated data to find hidden and meaningful correlations and predict an individual’s future actions. Therefore, Big Data can alter trial preparation by opening up new sets of information for lawyers to analyze in the jury selection process. Privacy concerns may follow Big Data’s incorporation because Big Data aggregates an individual’s information and predicts future actions. This Comment details how Big Data will provide a net benefit to trial preparation. In order to protect …

The First Patent Litigation Explosion, Christopher Beauchamp

Faculty Scholarship

No abstract provided.

Class Action Myopia, Maureen Carroll

Articles

Over the past two decades, courts and commentators have often treated the class action as though it were a monolith, limiting their analysis to the particular class form that joins together a large number of claims for monetary relief This Article argues that the myopic focus on the aggregated-damages class action has led to undertheorization of the other class-action subtypes, which serve far different purposes and have far different effects, and has allowed the ongoing backlash against the aggregated-damages class action to affect the other subtypes in an undifferentiated manner. The failure to confine this backlash to its intended target …

Judging Third-Party Funding, Victoria Sahani

Faculty Scholarship

Third-party funding is an arrangement whereby an outside entity finances the legal representation of a party involved in litigation or arbitration. The outside entity—called a “third-party funder”—could be a bank, hedge fund, insurance company, or some other entity or individual that finances the party’s legal representation in return for a profit. Third-party funding is a controversial, dynamic, and evolving phenomenon. The practice has attracted national headlines and the attention of the Advisory Committee on the Federal Rules of Civil Procedure (Advisory Committee). The Advisory Committee stated in a recent report that “judges currently have the power to obtain information about …

Third Circuit Takes The Wind Out Of Frivolous Litigators' Sails In Fair Wind Sailing, Inc. V. Dempster, Travis Dunkelberger

Villanova Law Review (1956 - )

No abstract provided.

Florida's Stand Your Ground Regime: Legislative Direction, Prosecutorial Discretion, Public Pressures, And The Legitimization Of The Criminal Justice System, Mary Elizabeth Castillo

Journal of Legislation

This note seeks to examine the tripartite relationship between legislative delegation, prosecutorial discretion, and public pressures in the context of Florida's "Stand Your Ground" regime. In the context of high profile criminal cases, a prosecutor faces significant public and political pressures that may influence her exercise of discretion in that case. Ultimately, Castillo argues that when a prosecutor succumbs to these pressures, it undermines her expertise, experience and exercise of discretion, and undercuts the legitimacy of the criminal justice system as a whole.

Principal Investments V. Harrison, 132 Nev. Adv. Op. 2 (Jan. 14, 2016), Katherine Maher

Nevada Supreme Court Summaries

The Court held unless the arbitration agreement commits the question to the arbitrator with “clear and unmistakable” language, a litigation-conduct waiver is presumptively for the court to decide because it is a waiver based on active litigation in court. Thus, the district court judge in this case did not err in addressing whether the moving party waived its right to arbitrate, instead of referring the question to the arbitrator.

A Student Electronic Discovery Primer: An Essential Companion For Civil Procedure Courses, Jennifer M. Smith, William F. Hamilton

Faculty Books and Book Contributions

A Student Electronic-Discovery Primer supplements the traditional civil procedure textbook. The Primer is specifically designed as a practical and accessible guide for the first-year law student. Traditional civil procedure textbooks have given short shrift to what has emerged as a foundation of modern civil litigation—electronic discovery. This concise text introduces students to the new and often troubling themes of electronic discovery: preservation, search, metadata, and forms of production, touching upon the major issues that confront the use of digital data in litigation. It also includes sample electronic discovery practice forms and outlines the key 2015 amendments to the Federal Rules …

Experience, Not Logic: Adapting Spoliation Doctrine To The Brave New World Of Digital Documents, Roni A. Elias

Student Works

The adversarial system requires full discovery as an essential element of a fair and accurate litigation process. Not surprisingly, spoliation—the destruction of evidence with a culpable state of mind—is an anathema to the most fundamental principles governing litigation procedure and in turn may warrant harsh sanctions.

The doctrines governing how courts respond to spoliation are well established. But these venerable rules were mostly devised for a discovery process that involved the production of paper documents. The information revolution that accompanied the dramatic expansion of computers to produce and store every kind of document forever transformed the discovery process. As computer …

Standing In The Judge’S Shoes: Exploring Techniques To Help Legal Writers More Fully Address The Needs Of Their Audience, Sherri Keene

Faculty Scholarship

No abstract provided.

Trademark's Ebay Problem, Peter J. Karol

Law Faculty Scholarship

This article explores the upheaval created within trademark law by eBay, Inc. v. MercExchange, L.L.C., asking why a simple doctrinal question (Should a patent remedies rule be extended to trademark cases?) has posed such problems for the courts. After a thorough review of past and present trademark injunction practice, and the Lanham Act’s legislative history, it finds that trademark law’s inability to assimilate eBay stems from unresolved substantive conflicts in the underlying legislation itself. In short, because the drafters could not settle on the proper scope of a federal trademark right, they hedged by granting a national exclusive right limited …

What Personal Jurisdiction Doctrine Does -- And What It Should Do, Katherine Florey

Florida State University Law Review

Commentators have routinely noted the complexity, opacity, and multiple functions of U.S. personal jurisdiction doctrine. Yet underlying this comparative chaos are two important concerns. Both commentary and Supreme Court cases have long recognized that a court's assertion of power over a particular defendant and case may have two undesirable consequences. First the burden on the defendant of having to appear before a certain type of court or in a particular location may be unacceptably high. Second a court's jurisdictional overreaching may encroach upon the sovereignty of other states or nations and in so doing, may foster uncertainty about which sovereign's …

Stays Of Injunctive Relief Pending Appeal: Why The Merits Should Not Matter, Jill Wieber Lens

Florida State University Law Review

In Nken v. Holder, the Supreme Court delineated the standards that must guide a court’s discretion in deciding whether to stay injunctive relief pending appeal A “critical” factor is whether the stay applicant has made a “strong showing” of her likelihood to succeed on the merits of the appeal. Because of the critical label it is not surprising to see lower courts issue long decisions extensively predicting the decision of the appellate court on the merits. To preserve her interest in judicial review, the stay applicant must effectively show that she will win the appeal.

Stays play an important …

Countering The Plaintiff’S Anchor: Jury Simulations To Evaluate Damages Arguments, John Campbell, Bernard Chao, Christopher Robertson, David Yokum

Sturm College of Law: Faculty Scholarship

Numerous studies have shown that the amount of a juror's damages decision is strongly affected by the number suggested by the plaintiffs attorney, independent of the strength of the actual evidence (a psychological effect known as "anchoring"). For scholars and policymakers, this behavior is worrisome for the legitimacy and accuracy of jury decisions, especially in the domain of non-economic damages (e.g., pain and suffering). One noted paper even concluded that "the more you ask for, the more you get. " Others believe that the damage demand must pass the "straight-face" test because outlandishly high demands will diminish credibility and risk …

Fortifying The Rights Of Unauthorized Immigrant Workers: Why Employee-Focused Incentives Under The Nlra Would Help End The Cycle Of Labor Rights Abuse, Caitlin E. Delaney

Journal of Law and Policy

Over the past several decades, there has been an unmistakable tension between labor law and immigration law in the United States. That tension, addressed by the Supreme Court most recently in 2001, still exists for unauthorized immigrant workers who wish to assert their labor rights under the National Labor Relations Act (NLRA). While the Obama Administration has made significant strides in easing the concerns that unauthorized immigrant workers may have before filing an NLRA claim, the unavailability of the back pay remedy and the uncertainty of protection from immigration authorities leave little incentive for such workers to assert their labor …

Defenders Of Wildlife V. Jewell: Environmentalists Win The Latest Battle In The Fight Over Gray Wolves, But Who Will Win The War?, Rachel Kenigsberg

Buffalo Environmental Law Journal

No abstract provided.

Beware Of The Genetically Modified Crop: Applying Animal Liability Theory In Crop Contamination Litigation, Michael H. Carpenter Jr.

Buffalo Environmental Law Journal

Genetically modified crops offer vast potential economic and social benefits to farmers and society, but also threaten the profits and harvests of conventional crop farmers through genetic crop contamination. On one hand, genetically modifled crops increase farming efficiency, decrease the cost offood, and provide solutions for global hunger. On the other hand, genetically modified crops may contaminate the crops of organic and conventional farmers through genetic drift, resulting in injury to both farmers and an apprehensive public. Litigation over crop contamination is an unsettled area of the law, even after four major crop contamination incidents. While courts have held that …

Amended Complaint, Weiner V. Prairie Park, Docket No. 1:16-Cv-01889 (N.D. Ill. 2016), Allison Bethel

Court Documents and Proposed Legislation

No abstract provided.

Occam's Phaser: Making Proportional Discovery (Finally) Work In Litigation By Requiring Phased Discovery, Michael Murphy

Faculty Scholarship

This is an article about solving the problem of expensive electronic discovery in litigation by simply learning the most important facts first. Judges and parties often complain that the scope of information included in fact discovery in civil litigation is overinclusive and disproportionate to size of the dispute, resulting in overly expensive costs. The Federal Rules of Civil Procedure recently changed again to further emphasize the use of “proportional” limits in discovery, but provide little practical mechanism for parties, lawyers, and judges to make discovery “right-sized.” This Article proposes that parties should be required to “phase” discovery by first setting …

Fool Me Twice: Zubik V. Burwell And The Perils Of Judicial Faith In Government Claims, Mark L. Rienzi

Scholarly Articles

This article proceeds in three parts. Part I examines the three government concessions that made the Supreme Court’s Zubik decision possible and how those concessions ultimately revealed that it is possible to protect both contraceptive access and religious liberty. Part II discusses how the circuit courts were brought to emphatically adopt positions the government would ultimately abandon under the slightest pressure. Part III concludes with some key lessons lower courts should take from Zubik to better protect the integrity of both the court system and religious-liberty laws.