Litigation Commons^™

No-Hire Rulings Forget Competition, Val Ricks

American University Law Review

Two recent and noted antitrust rulings on the legality of no-hire (or “no-poach”) agreements paid lip service to preserving and promoting competition for employees but in the end failed to apply competition as a standard. Instead—and this is seen only deep in the weeds of the decisions themselves, on careful reading—judges demanded that no-hire agreements be held illegal only when they constitute abuse of market power, more or less. These decisions impliedly distinguish horizontal agreements not to compete for employees from horizontal agreements not to compete for customers, or on price. The opinions tend to “require careful economic analysis” of …

Like It Or Not: Recognizing A Special Relationship Between Social Media Companies And Their Users, Alexandra Tran

Fordham Law Review

When the internet plays a role in a plaintiff’s injury, there can be considerable roadblocks barring recovery. At the heart of the dispute over how social media should be legally addressed is the balance between maintaining freedom of expression on the open internet and imposing regulations on social media companies to ensure online safety. When plaintiffs allege that a social media company had a duty to warn them about dangers on its site, courts are generally reluctant to extend the special relationship doctrine to encompass the social media-user relationship. In addition to the high bar set by courts, different jurisdictions …

Clarifying Concreteness: Statutory Grants Of Standing After Spokeo And Transunion, Naomi Eid

FIU Law Review

Article III limits the federal judicial power to deciding “cases” and “controversies,” demanding that a plaintiff suffer real, concrete, de facto harm to sue in federal court. In Spokeo and TransUnion, the Supreme Court clarified the outer limits of concreteness by making clear to plaintiffs that an injury in law is not an injury in fact. The Court largely grounded the decisions in the separation of powers, setting a tone that appears less deferential to Congress in its creation of statutory rights of action. A plaintiff does not automatically satisfy the injury-in-fact requirement whenever Congress grants a right and purports …

Symposium Transcript, In Re Opioid Litigation: The Pretrial Phase, Rodger D. Citron

Touro Law Review

In October 2023, Touro Law Center held a two-day conference on “The Past and Future of Opioid Litigation.” The inspiration for the conference was an extraordinary five-month jury trial in Suffolk County presided over by Hon. Jerry Garguilo. The trial, which was the first in the United States to include all parties in the pharmaceutical supply chain, from manufacturers to wholesale distributors to retail sellers, began in the summer of 2021. As Touro Law Dean Elena Langan notes in her introductory remarks below, because of the pandemic, the trial began and continued for a period of time in the auditorium …

Litigation, Reform, And The Opioid Crisis: From Mdl To Bankruptcy, Abbe R. Gluck

Touro Law Review

Can bankruptcy solve a public health crisis? Bankruptcy has taken center stage in complex civil litigation, and the massive opioid litigation is no exception. The U.S. Supreme Court in 2024 decided its first recent case about the intersection of bankruptcy and modern public harms litigation in Harrington v. Purdue Pharma L.P., a decision that brought to the fore pressing questions about the increasing use of bankruptcy in mass torts. In raising concerns about bankruptcy courts being used as a “roving commission to solve all such problems” in complex civil litigation,” the case potentially signals the Court’s growing discomfort with creative …

Addressing Opioid Use Disorder In The Middle East And North Africa (Mena) Regions, Alyaa Chace

Touro Law Review

The opioid crisis has devastated communities across the United States, prompting extensive litigation against pharmaceutical companies for their role in fueling addiction. Aggressive pharmaceutical marketing has led to the development of key lawsuits against Purdue Pharmaceuticals, the Sackler family, Johnson & Johnson, and Teva Pharmaceuticals, as well as a landmark $26 billion global settlement involving major distributors. U.S. courts have played a crucial role in corporate accountability, mandating record financial settlements alongside behavioral and policy reforms. By contrast, the opioid crisis in MENA, which stemmed largely from illicit drug trafficking often linked to geopolitical instability, has been more often met …

On Becoming And Being A Criminal Defense Attorney, Steven B. Duke

Touro Law Review

Steven B. Duke grew up in a tiny farming community in Arizona. In college, he experienced injustice during an encounter with the police and decided to attend law school. As a result of his success at the University of Arizona Law School, Duke was offered a clerkship with Justice William O. Douglas for the 1959-60 Supreme Court term. As Duke describes in this article, working for Justice Douglas was a rewarding and demanding experience. Douglas, probably the most liberal Justice ever to serve on the Supreme Court, had a dazzling intellect and wrote many books on all manner of subjects. …

Symposium Transcript, In Re Opioid Litigation: The Trial Phase, Rodger D. Citron

Touro Law Review

In October 2023, Touro Law Center held a two-day conference on “The Past and Future of Opioid Litigation.” The inspiration for the conference was an extraordinary five-month jury trial in Suffolk County presided over by Hon. Jerry Garguilo. The trial, which was the first in the United States to include all parties in the pharmaceutical supply chain, from manufacturers to wholesale distributors to retail sellers, began in the summer of 2021. Ultimately, in 2022, the case settled. This allowed Judge Garguilo and attorneys from the case – Jayne Conroy, who represented one of the plaintiffs, Suffolk County, and Harvey Bartle, …

Asking The Right Questions About Legal Finance In United States Aggregate Dispute Resolution, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

Third-party legal finance is one of the most controversial modern developments in civil justice, both in the United States and across the globe. It is particularly controversial when mentioned in the same breath as aggregate litigation. Current debate trains on a series of repeated questions: whether and how to ban litigation finance in aggregate litigation; whether the use of litigation finance should be disclosed in discovery; and whether litigation finance is allowed under various (and often ancient) legal doctrines. Obscured from view is what I believe to be the most fundamental question: What is the proper role of litigation finance …

What Is Trump Immunity?, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

In Trump v. United States, the Supreme Court held that a former President is entitled to an immunity in criminal cases in certain circumstances. The decision has been heavily criticized, with many commentators saying it places the President above the law. Exactly how it does so depends on what type of immunity a former President enjoys. Is the immunity enjoyed by former Presidents in criminal cases an immunity from the operation of the primary obligations imposed by the criminal laws in question? Or is it an immunity from being subjected to certain types of sanctions for having violated validly …

Securities Arbitration Case Law Update 2024–2025 (July 2025), Elissa Germaine, Anthony Rivera

Faculty Publications

(Excerpt)

This article summarizes recent cases regarding the constitutionality of FINRA and leading arbitration cases that are of particular relevance to securities arbitration practitioners.

Litigating Climate Vulnerability: Climate Change Reparations In Global Jurisprudence And Empirical Results From The Notre Dame Climate Change Reparations Dataset, Diane A. Desierto, Anibal Perez-Linan, Faisal Yamil Meneses, Yuta Inada, Rachael Degaugh, Andrew Marciano

Journal Articles

From the article

The global surge in climate change litigation provokes inquiry into the nature, frequency, and scope of climate change reparations that international, regional, and national courts, as well as arbitral tribunals and other adjudicative bodies such as UN treaty body mechanisms, determine to be adequate, both on legal merits as well as intrinsic claims of justice, for the resolution of disputes brought by climate vulnerable persons, groups, and constituencies against States, multinational corporations, and other actors. Our findings from the Notre Dame Climate Change Reparations Dataset reveal a broad spectrum of pecuniary and non-pecuniary reparations being adjudicated in …

Predicting Federal Third-Party Funding Regulation, Victoria Sahani

Faculty Scholarship

Third-party funding is a global phenomenon, although regulatory enforcement is local. Regulatory approaches vary widely from country to country and within countries, especially in federal legal systems, such as Canada, Australia, and the United States. The United States federal government is learning about third-party funding with an eye toward potential future regulation. Congress has been investigating funding, as evidenced by testimony in congressional hearings, proposed federal legislation, and a nonpartisan study on third-party funding by the Government Accountability Office. In addition, after more than a decade of observation, the United States Federal Civil Rules Advisory Committee recently formed a committee …

Assembling Pieces Of Accountability For The Srebrenica Genocide, Annick Pijnenburg, Nataša Nedeski

Genocide Studies and Prevention: An International Journal

The Srebrenica genocide has been the subject of multiple legal proceedings against various actors before different courts, at both the national and international level. Amongst others, the International Criminal Tribunal for the Former Yugoslavia has sentenced various individual perpetrators, the International Court of Justice has ruled on the responsibility of the Serbian state, and Dutch courts have been asked to rule on the liability of the Dutch state and the United Nations. This raises the following question: to what extent have multiple adjudicatory mechanisms across legal regimes managed to deliver accountability for the Srebrenica genocide and what are the remaining …

Across The Aggregation-Entity Divide: Personal Jurisdiction, Standing, And The Nature Of The Class Action, Charles Hill

University of Cincinnati Law Review

No abstract provided.

The Illusory Coverage Doctrine Is Not A Doctrine At All (But It Should Be), Shannon W. Conway

Catholic University Law Review

The Illusory Coverage Doctrine, if it ever becomes a true legal doctrine, has the potential to be an incredibly useful tool in insurance law. But courts around the country take very different approaches to the doctrine, ranging from one end of the spectrum—a hard-nosed “pro-insurer” stance where coverage is not illusory so long as a policy provides any coverage—to the other—a muscular “pro-policyholder” public policy approach that requires coverage even if some other exclusion might have prevented coverage under the applicable policy. And along the spectrum are various other iterations, contributing to the complete lack of certainty or consistency about …

Dignity Defended, Privacy Preserved: A Call For Improved Legal Safeguards To Shield Victims Of Intimate Crimes From Public Scrutiny, Madeline E. Brown

University of Cincinnati Law Review

No abstract provided.

The Private Cause Of Action Under Maine's Unfair Trade Practices Act, Steven A. Shaw

Maine Law Review

In 1970 the Maine Legislature passed the Unfair Trade Practices Act (UTPA) which declared unlawful any "unfair methods of competition and unfair or deceptive acts or practices in the conduct of any trade or commerce . . . ." UTPA-type statutes, now common to all states, offer several advantages. The statutes provide for a statutory award of attorneys' fees, create a private cause of action which is simple in comparison to analogous common law claims, and offer a flexible concept of unlawful conduct which many courts have shown a willingness to interpret broadly and sympathetically. Although Maine's UTPA was originally …

State V. Sweatt: An Examination Of The Current Confusion In Fourth Amendment Standing, John Archer Hobson

Maine Law Review

In State v. Sweatt the Maine Law Court held that an owner of gems being sold on consignment in a third party's store has standing under the fourth amendment to contest the seizure of the gems. The movants in Sweatt were the targets of several police searches during October and November of 1980. During these searches the police seized tourmaline gemstones which were alleged to have been stolen from Dale Sweatt's former business partner, and miscellaneous personal items belonging to the Sweatts. Subsequently, the Sweatts moved for suppression and return of all these articles. The superior court granted the movants' …

In Defense Of Civil Juries, Peter W. Culley

Maine Law Review

Criticism of the civil jury system is nothing new. In fact, virtually since its inception the civil jury has been embroiled in controversy. Typically critics argue that: the jury cannot handle the complex or technical case; there is great expense and delay attendant to trial by jury; jury adjudication is of low quality; verdicts rendered by different juries in cases involving similar facts often appear inconsistent. Recently, Justice Donald Alexander of the Maine Superior Court stated that "[t]he civil jury system has outlived its usefulness." In support of his basic premise that the civil jury system is merely an historical …