Litigation Commons^™

The Opioid Litigation’S Challenge For Tort Theory, Alexander B. Lemann

Brooklyn Law Review

Tort litigation related to the opioid crisis has spanned several decades and led to tens of billions of dollars in liability. While several important opioid cases remain pending in various stages of litigation, it is now possible to sketch a basic outline of the results: individual plaintiffs sued opioid manufacturers on a variety of theories, seeking redress for the harms resulting from their addictions. They all lost. Following a pattern established by the tobacco litigation thirty years earlier, public plaintiffs, including city, county, and tribal governments, then filed their own suits, principally on public nuisance theories. These cases were much …

Redefining The Scope Of Anti-Discrimination Law: Illuminating Colorism As A Basis For Discrimination Claims By Black Entertainers, Tolulope F. Odunsi-Nelson

Brooklyn Law Review

This Article critically examines the pervasive issue of colorism within the entertainment industry and its profound impact on dark-skinned Black entertainers. Anti-Black colorism is discrimination against Black people with darker skin tones and Afrocentric features (i.e. darker eye color, kinkier hair, broader nose, fuller lips). Tracing the historical roots of colorism from the colonial era to contemporary times, the Article emphasizes how societal preferences for Eurocentric features and anti-Black racism have created and perpetuated a hierarchy that disadvantages darker-skinned individuals. It analyzes the underrepresentation and pay disparities faced by dark-skinned Black actors and actresses. It details the industry’s preference for …

Holding Up A Mirror To Hostile Gender Legislation: The Impact Of Drag Bans On The Theater Industry, Claire B. Epstein

Pace Law Review

States, particularly infringing upon the rights of the LGBTQIA+ community. Certain states have sought to introduce “drag ban” laws under the guise of protecting children from viewing obscene content. These laws, in effect, are harmful to people, children especially, and have a chilling effect on expression, leaving critical harm in their wake. Laws such as these cast a wide net of regulation, opening up otherwise innocent citizens to criminal and civil liability. The theater industry is particularly affected by these regulations, even if lawmakers do not acknowledge this potential harm. This article will focus on three laws seeking to regulate …

Shield, Sword, Or Relic Of Yore? The Apex Doctrine's Quest In The Modern Legal Arena (And What Future Battles May Bring), Katerina Fernandez

University of Cincinnati Law Review

No abstract provided.

Cross-Appeals In Maine: Pitfalls For The Winning Litigant, Maine Law Review

Maine Law Review

The question of when a winning party must cross-appeal to challenge non-determinative findings in defense of a favorable judgment was answered for the first time in Maine in the recent case of Littlefield v. Littlefield. Noting a split of authority between the federal and state courts, the Maine Supreme Judicial Court unpredictably determined that an appellee must file a cross-appeal if he seeks to attack adverse findings which, if decided differently, would adequately support the judgment. In Littlefield, the court's objective was to provide notice to opposing parties. Recognizing that this end is a legitimate concern, the question here is …

Forbes V. Wells Beach Casino And The Contemporaneous Ownership Rule, Maine Law Review

Maine Law Review

Prior to the enactment of Title 13-A of the Maine Business Corporation Act in January 1972, it was unsettled in Maine law whether a stockholder suing in a derivative action had to allege ownership of stock at the time of the wrongful transaction. In Forbes v. Wells Beach Casino, Inc., initiated before Title 13-A became effective, the Maine Supreme Judicial Court handed down its initial pronouncement on the stockholder standing issue. The decision makes clear that even in those jurisdictions where contemporaneous ownership is required, the rule is not absolute. The Maine court found that there are instances in which …

No Lawyer, No Jail: A Critical Case Study Of Pragmatism And The Flaws Of “Purposeful” Decision Making In Argersinger V. Hamlin, Alisa Smith, Sarah K. Stice

Seattle University Law Review

By releasing conference notes and internal communications, Supreme Court Justices provide insight into the otherwise private decisionmaking process, shedding light on how case outcomes and legal reasoning are framed and negotiated. The watershed case of Argersinger v. Hamlin (1972) extended the constitutional right to counsel to some, but not all, misdemeanor defendants. The case was argued twice, and the Court relied on empirical and authoritative sources to answer complex and practical questions about requiring counsel. This case study employs critical discourse analysis to uncover what influenced the Justices’ decisions and how they framed, shaped, and constructed social realities to foreground …

The Race To Erase: Destruction Of Government Documents Undermines Freedom-Of-Information Laws, Frank D. Lomonte

Seattle University Law Review

In August 2019, reporters with Chattanooga’s daily newspaper, the Times Free Press, filed what seemed to be a routine request for access to emails and other public records held by their local county government. The seemingly unremarkable request set the newspaper’s staff on a months-long journey of unpleasant surprises. The first was a demand to pay the county $717 in advance before being allowed to inspect the documents. The second was that—during prolonged haggling over the fee assessment— the county attorney’s office simply destroyed almost all of the disputed records. Third, and most glaringly, the journalists discovered that Tennessee law …

When You’Re Arrested For A Felony In Seattle, You’Ll Meet Me., Austin Field

Seattle University Law Review

In this Essay, Austin Field, a practicing public defender, uses a first-person perspective to describe what it is like to meet a criminal defendant for the first time. He explains the process from start to finish, detailing everything from the way he introduces himself to how bail works.

"I’ll ask you for your name. Most of the time, you tell me. I check your name against my list. On any given day I’m supposed to interview between five and fifteen people. I have a lot of questions for you. We only have about ten minutes."

The Public Square In A Private-Property Obsessed Country: What New York City’S Pops Regulations Get Right And Why Other Cities Should (Mostly) Copy Them, Carson Mcgregor

Seattle University Law Review

When New York City (NYC) was first becoming the metropolitan monolith it is today, it had a problem: the city streets were chock full of skyscrapers, and sunlight, air, and usable open space were at a premium. In response, the City promulgated its first Privately Owned Public Spaces (POPS) regulations, which allowed developers to build skyward in exchange for providing public space on the street level. Unfortunately, in July of 2023, the New York Times (NYT) discovered that New Yorkers received only a fraction of what they were promised. Building owners received billions of dollars’ worth of added floor space, …

Volume 48 Masthead, Seattle University Law Review

Seattle University Law Review

Volume 48 Masthead

Defining Deference: Impacts Of Abandoning Chevron On Emerging Technology Governance And Administrative Law, R. Aubrey Davis Iii

Seattle University Law Review

Emerging technologies, particularly Artificial Intelligence (AI), often lead to unforeseen legal outcomes. Notable abuses in areas such as facial recognition, employment bias, and housing discrimination are well known. However, legislative responses to these issues either have been largely reactive or there has been no legislative response at all. In lieu of legislation, agencies have sought to fill the gap. For example, the Federal Communications Commission (FCC) recently proposed a rule mandating voter notification for all AI-generated political phone calls citing the Telephone Consumer Protection Act (TCPA) of 1991 as authority. However, the TCPA was originally passed to curtail telemarketing, not …

Intellectual Property Or Modern Folklore? The Problem With Open Gaming Licenses In Tabletop Gaming, Rosie Midget

Seattle University Law Review

This Note addresses how courts and legislatures should address “Open Gaming Licenses” commonly attached to tabletop roleplaying games (TTRPGs), which game publishers use to promote a false image of accessibility—misleading consumers and building goodwill from the misunderstanding. Part I discusses what TTRPGs are, including the defining features of the hobby and culture surrounding it, as well as the unique interplay between publishers and players. Part II explores the question of which elements in a TTRPG system may be subject to copyright protection. Part III examines these elements in practice using Wizards of the Coast’s Dungeons and Dragons TTRPG as a …

Modern Day Colonialism Through HawaiʻI’S Quiet Title And Partition Laws, Cheyann Fujii

Seattle University Law Review

This Note will attempt to highlight important aspects of Hawaiian history to provide readers with a clear picture on how Native Hawaiians are still impacted by colonialism, specifically when plaintiffs bring a quiet title or partition action against Native Hawaiian owners of kuleana lands. Before colonization, the concept of private land ownership did not exist in Hawai‘i, and Native Hawaiians adopted a feudal system by dividing land into geographical areas. Missionaries and businessmen brought Western ideas to Hawai‘i and influenced legislation such as the Great Māhele and the Kuleana Land Act of 1850, which solidified the concept of private property. …

Data Advantage And Merger Review: Can Entrenchment Theory Reform Antitrust Enforcement?, Shin-Ru Cheng

Seattle University Law Review

A merger involving giant digital companies is likely to dampen competition, as it allows those companies to combine and control data access, enabling them to entrench their dominant positions in relevant markets and extend those positions into related markets. While competition law in many jurisdictions aims to prohibit mergers that may substantially lessen competition or create a monopoly, arguably the review of digital mergers is failing because antitrust agencies lack an effective approach to identify data-generated anticompetitive harms. This Article demonstrates that entrenchment theory, recently reintroduced in the 2023 U.S. Merger Guidelines, would help reform the process of antitrust enforcement. …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Caution: Potholes In E-Scooter Data Collection, Dakota Rakestraw

Seattle University Law Review

Lime scooters keep ending up in major waterways in Washington state metro areas, a testament to the ubiquity of e-scooters in the metropolitan landscape. How they get there is unclear. Why they get there is even murkier. Perhaps the answer lies in the implications of modern geolocation data collection through e-scooters and gaps in current data collection regulation curbing individual liberties.

Since September 2020, electric scooters have run Seattle’s streets and have dramatically overtaken ridesharing bike trips. For example, from September 2020 to September 2021, there were about 1.4 million scooter and bike trips with September 2021 seeing 300,000 scooter …

Machinists Preemption In The New Administrative Law, Andrew J. Ziaja

Seattle University Law Review

This Article assesses Machinists preemption—a labor-specific form of implied field preemption—while freshly considering implications both for and of new developments in administrative law. The radical transformation of administrative law in the Supreme Court, particularly its newfound emphasis on clear-statement rules, provides opportunities to reconsider the Machinists rationale. Aligning with scholars who have called to question the doctrine’s “ossifying” influence on labor and employment policy, it argues that the modern-day version of Machinists preemption clashes with the Supreme Court’s newly constrained view of delegated power and its differing conceptions of the major questions doctrine.

On the other hand, Machinists preemption might …

Disagreeing With Yourself: Horizontal Stare Decisis In State Intermediate Appellate Courts, Steve Leben

Faculty Works

Some statewide intermediate appellate courts, like those in Kansas, do not follow horizontal stare decisis one panel of the court can disagree with, but not overrule, another. This article reviews how precedential disagreements arise in the Kansas Court of Appeals, what the costs and benefits are of not following horizontal stare decisis, and how attorneys might change their advocacy approach in a state like Kansas. The article concludes that the benefits of the Kansas practice achieving better development of the law and justice in individual cases outweighs the harm of less predictability in precedent

“Shipping” Away The Captive Audience Meeting, Nathan Kakalec

Fordham Law Review

On November 14, 2024, the National Labor Relations Board (NLRB) overturned seventy-six years of labor law precedent by banning captive audience meetings in Amazon.com Services LLC. Captive audience meetings, mandatory meetings where employers discuss unionization with their employees, were a powerful anti-union tool used by employers to coerce their employees into rejecting unionization. The NLRB argues that captive audience meetings are inconsistent with § 7 and § 8 of the National Labor Relations Act (NLRA). Employers reject the NLRB’s assertion and contend that banning captive audience meetings infringes on their First Amendment right to communicate their views on unionization. …