Litigation Commons^™

The City Suit, Zachary D. Clopton, Nadav Shoked

Emory Law Journal

This Article addresses the role of local governments in the most American of activities: the lawsuit. During the last few decades, city litigation has grown more proactive, diverse, and prominent. Cities now frequently file lawsuits respecting the most notable issues of the day. Each of these suits involves specific policy concerns peculiar to its subject matter, but as a group—as a legal phenomenon—they all raise common, and disputed, doctrinal questions pertaining to standing, local preemption, res judicata, state immunity, and more.

When tackling these diverse doctrinal issues—sounding in both civil procedure and local government law—courts and scholars have failed to …

The Exit Theory Of Judicial Appraisal, William J. Carney, Keith Sharfman

Fordham Journal of Corporate & Financial Law

For many years, we and other commentators have observed the problem with allowing judges wide discretion to fashion appraisal awards to dissenting shareholders based on widely divergent, expert valuation evidence submitted by the litigating parties. The results of this discretionary approach to valuation have been to make appraisal litigation less predictable and therefore more costly and likely. While this has been beneficial to professionals who profit from corporate valuation litigation, it has been harmful to shareholders, making deals costlier and less likely to be completed.

In this Article, we propose to end the problem of discretionary judicial valuation by tracing …

Election Subversion And The Writ Of Mandamus, Derek T. Muller

Journal Articles

Election subversion threatens democratic self-governance. Recently, we have seen election officials try to manipulate the rules after an election, defy accepted legal procedures for dispute resolution, and try to delay results or hand an election to a losing candidate. Such actions, if successful, would render the right to vote illusory. These threats call for a response. But rather than recommend the development of novel tools to address the problem, this Article argues that a readily available mechanism is at hand for courts to address election subversion: the writ of mandamus. This Article is the first comprehensive piece to situate the …

In Search Of The First-Round Knockout A Rule 12(B) Primer, Kate Rogers, Leonard Niehoff

Articles

Boxing enthusiasts define success not just by wins and losses but also by knockouts. Many of the greatest fighters in the history of boxing—Rocky Marciano, Mike Tyson, Jack Dempsey, and Sugar Ray Robinson—were known for their knockout punching power. Within the category of knockouts, the gold standard is the first-round knockout, the moment when stunned fans watch a fighter take the opponent out of the contest before either of them has broken a sweat.

Mistakes With The Mistake Defense In Texas Criminal Law, Charles Bubany

St. Mary's Law Journal

No abstract provided.

Nestlé V. Doe: A Death Knell To Corporate Human Rights Accountability?, Phillip Ayers

Seattle University Law Review

The Supreme Court in Nestlé v. Doe held that foreign plaintiffs who claimed to be victims of overseas tortious conduct by corporate defendants had no jurisdiction to sue in federal courts using the Alien Tort Statute. This Comment looks at the history of the Alien Tort Statute, from its inspiration, long dormancy, and recent reinvigoration beginning in the 1980s. The Comment then explores the background of Nestlé and its issues with child slavery in its cocoa supply chain. From there, the Comment analyzes the Nestlé v. Doe decision, and posits an alternative outcome. Finally, this Comment looks for a new …

The Trial Of Thomas More - Robert Bolt's A Man For All Seasons, Jonathan Van Patten

Faculty Publications

The path from Magna Carta to the United States Constitution and the Bill of Rights runs through the trial of Thomas More. Robert Bolt's magnificent portrayal of that trial in A Man for All Seasons provides an opportunity to learn and reflect on how a political trial can teach us about the meaning of justice. The search for universals must be rooted in the particulars. The particulars in this case will also resonate with modern audiences who seek to understand their own politics in times of crisis.

“Fundamental Fairness”: Finding A Civil Right To Counsel In International Human Rights Law, Meredith Elliot Hollman

Law Student Publications

Every other Western democracy now recognizes a right to counsel in at least some kinds of civil cases, typically those involving basic human rights. The World Justice Project’s 2021 Rule of Law Index ranked the United States 126th of 139 countries for “People Can Access and Afford Civil Justice.” Within its regional and income categories, the United States was dead last. The United Nations and other international treaty bodies have urged the United States to improve access to justice by providing civil legal aid. How did we fall behind, and what can we learn from the rest of the world? …

Fuoco V. Polisena, 244 A.3d 124 (R.I. 2021), David Marks

Roger Williams University Law Review

No abstract provided.

Constraining Corporate Law Principles In Affiliate World, Anita K. Krug

Emory Law Journal

No abstract provided.

Contempt Power And The United States Courts, Joshua Carback

Mitchell Hamline Law Journal of Public Policy and Practice

Contempt power is one of the most important legacies of English common law in federal common law. Substantively, the contempt power of the United States Courts is relatively similar to that employed by the Court of King’s Bench in the eighteenth century. Procedurally, however, it is quite different. The Rules Enabling Act of 1934 created an interbranch framework for crafting procedural rules for the United States Courts. All three branches of the federal government collaborated under that framework with the intention of rationalizing, systemizing, and delimiting the boundaries of contempt power. The culmination of decades of strenuous rulemaking, unfortunately, was …

Mandatory Child Custody Mediation: A Call On California To Protect Domestic Violence Survivors, Anne M. Sidwell

University of San Francisco Law Review

No abstract provided.

Undoing Undue Influence: How The Doctrine Can Avoid Judicial Subjectivity By Omitting The Vulnerability Element, Robin Boyle-Laisure

Faculty Publications

(Excerpt)

The utility of the doctrine of undue influence has been declining for several decades because of its inclusion of the element of vulnerability or, put another way, inquiry into the mind of the one allegedly being influenced. I argue that the courts’ inquiry into the mind of the influencee to determine whether this person was vulnerable is not a useful construct as an element of the doctrine. This Article addresses three contexts in which assessing one’s vulnerability is problematic: (1) in the contract formation process occurring in the general population (meaning not within a high-control group), such as the …

Corporate Governance And Gender Equality: A Study Of Comply-Or-Explain Disclosure Regulation, Aaron A. Dhir, Sarah Kaplan, Maria Arabella Robles

Seattle University Law Review

In 2020, the Nasdaq Stock Market filed a proposal with the U.S. Securities and Exchange Commission seeking permission to adopt a board diversity-related disclosure requirement for its listed companies. In 2021, the SEC approved the proposal, thus entrenching Nasdaq’s position as the most significant stock exchange to date to mandate listing rules that reflect the intention of diversifying corporate boardrooms. Nasdaq’s movement into the diversity space is not the first attempt to address homogeneous boards in the U.S. In 2009, the SEC adopted a rule requiring publicly traded firms to report on whether they consider diversity in identifying director nominees. …

Judicial Ethics And The Eradication Of Racism, Dontay Proctor-Mills

Seattle University Law Review

In 2020, the Washington Supreme Court entrusted the legal community with working to eradicate racism from its legal system. Soon after, Washington’s Commission on Judicial Conduct (hereinafter the Commission) received a complaint about a bus ad for North Seattle College featuring King County Superior Court Judge David Keenan. Along with a photo of Judge Keenan’s face, the ad included the following language: “A Superior Court Judge, David Keenan got into law in part to advocate for marginalized communities. David’s changing the world. He started at North.” The Commission admonished Judge Keenan for violating the Code of Judicial Conduct, in part …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Why Corporate Boards Should Include Lgbtq+ People, Jeremy Mcclane, Darren Rosenblum

Seattle University Law Review

Corporate boardrooms sit at the heart of most of society’s most consequential decisions but fall far short of the diversity of our society. The current movement toward board diversification aims to remedy the underrepresentation of marginalized groups on corporate boards. More recently, some efforts have included LGBTQ+ people, even though the basis for their inclusion on corporate boards remains largely unstated. This Article examines both the normative and instrumental bases for LGBTQ+ inclusion in board diversity initiatives, articulating unspoken assumptions and linking LGBTQ+ people to the broader inclusion effort. In so doing, it begins to surface the unique issues LGBTQ+ …

Apology As An Intellectual Property Remedy In China: A Preliminary Examination Of American Litigation Experiences, Robert H. Hu

Faculty Articles

Seeking and receiving an apology from the wrongdoer is a ubiquitous social phenomenon in Chinese culture and society. In recent years, litigation and apologies appear to be natural elements of contemporary life in China. Apologies as a legal remedy in Chinese laws and regulations have become prevalent for nearly four decades. In particular, in intellectual property law, the last thirty years have witnessed an explosion of apology cases. In such litigation, plaintiffs seek (and sometimes obtain) apologies from the defendants as a statutory remedy besides injunction and damages. American businesses operating in China increasingly take to the Chinese courts to …

Giving Shareholders The Right To Say No, Albert H. Choi, Adam C. Pritchard

Articles

When a public company releases misleading information that distorts the market for the company’s stock, investors who purchase at the inflated price lose money when (and if) the misleading information is later corrected. Under Rule 10b‑5 of the Securities Exchange Act of 1934, investors can seek compensation from corporations and their officers who make materially misleading statements that the investors relied on when buying or selling a security. Compensation is the obvious goal, but the threat of lawsuits can also benefit investors by deterring managers from committing fraud.

When To Be Objectionable… And How Not To Be An Artless Clay-Brained Pignut, Leonard Niehoff

Articles

Having taught evidence for more than 30 years. I've become fairly good at predicting the questions students will ask, especially the questions that are hardest to answer. One of those typically comes after we've discussed how to object to evidence. We've worked through the basics: Stand up, speak up, say that you object, and briefly explain why. At this point a student almost always raises his or her and says something like this: "OK. I understand the how part. But when do I object?"