Litigation Commons^™

United States V. Donziger: How The Mere Appearance Of Judicial Impropriety Harms Us All, Jackie Kushner

Journal of Law and Policy

In 2011, environmentalist lawyer Steven Donziger was sued in a retaliatory lawsuit by the oil company Chevron, following his securement of a multibillion-dollar award against the company for its environmental harms in Ecuador. In a case rife with judicial impropriety, Donziger was ultimately charged with criminal contempt of court and his charges were prosecuted by a private attorney. These suits exemplify the growing problem of powerful corporations using legal tactics to retaliate against activists and undermine the legitimacy of the legal system. Federal judges contribute to the problem by misusing the extensive power they hold in distinguishing criminal from civil …

Racial Trauma In Civil Rights Representation, Angela Onwuachi-Willig, Anthony V. Alfieri

Michigan Law Review

Narratives of trauma told by clients and communities of color have inspired an increasing number of civil rights and antiracist lawyers and academics to call for more trauma-informed training for law students and lawyers. These advocates have argued not only for greater trauma-sensitive practices and trauma-centered interventions on behalf of adversely impacted individuals and groups but also for greater awareness of the risks of secondary or vicarious trauma for lawyers who represent traumatized clients and communities. In this Article, we join this chorus of attorneys and academics. Harnessing the recent civil rights case of P.P. v. Compton Unified School District …

Protecting The Constitution While Protecting Victims: Challenges To Pro Se Cross-Examination, Katharine L. Manning

Brooklyn Law Review

Defendants have constitutional rights to cross-examine witnesses and to represent themselves. But when these rights are combined, they can have devastating effects on crime victims. All too often, defendants use the rights in a last-ditch effort to harass, bully, and intimidate the crime’s victims, sometimes leading to a dismissal of charges altogether, as victims withdraw their testimony to avoid personal cross-examination by the defendant. It does not have to be this way. Numerous courts have allowed standby counsel to conduct cross-examination of the victim within constitutional constraints. This article explores the limitations courts have imposed on pro se cross-examination to …

The Rules Of The Malpractice Game: Affidavit Of Merit Statutes, Erie, And The Cautionary Tale Of An Overbroad Application Of Rule 11, Deanna Arpi Youssoufian

Brooklyn Law Review

In an effort to combat the rise in potentially frivolous lawsuits against professionals, including physicians, attorneys, and journalists, states have passed malpractice legislation requiring plaintiffs to file an affidavit of merit (AOM) attesting to the validity of their claims. However, these AOM statutes may conflict with Federal Rule of Civil Procedure 11, which provides that “a pleading need not be verified or accompanied by an affidavit” unless a rule or statute states otherwise. This is a classic Erie/choice-of-law problem for federal courts sitting in diversity, which are tasked with applying federal procedural law and state substantive law, and now must …

International Litigation, Aaron Marr Page, Jonathan I. Blackman, Carmine D. Boccuzzi, Theodore J. Folkman, Phillip B. Dye Jr., Matthew D. Slater, Howard S. Zelbo, Igor V. Timofeyev, Charles A. Patrizia, Joseph R. Profaizer

The Year in Review

No abstract provided.

Law School News: Professor Of The Year 2022: Brittany Reposa 05/19/2022, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

A Tipping Point In Ohio: The Primacy Model As A Path To A Consistent Application Of Judicial Federalism, The Honorable Pierre Bergeron

University of Cincinnati Law Review

No abstract provided.

Examination Of Eviction Filings In Lancaster County, Nebraska, 2019–2021, Ryan Sullivan

Nebraska College of Law: Faculty Publications

The study examined and analyzed eviction filings and proceedings in Nebraska, with a specific focus on Lancaster County—the home to the State’s capital, Lincoln. The primary objective of this study is to place eviction proceedings under a microscope to gain a better understanding of the volume of evictions in Nebraska, and whether the statutorily mandated processes are being followed. The study also attempts to capture the impact of certain external factors present during the period examined. Such factors include the COVID-19 pandemic and various eviction moratoria in place during 2020 and 2021, as well as the increased availability of legal …

No More “Heads Defendants Win, Tails Plaintiffs Lose”: How The Georgia Supreme Court’S Relation Back Decision In Cannon Rebalances Pleading Power, Jordan Lipp

Mercer Law Review

Imagine your daughter dying in a high-speed police chase—when she was not even the driver that evaded police or caused the crash. You want to hold someone accountable, but you do not know who the right person is if you sue: the deputy, the sheriff in his personal capacity, the sheriff in his official capacity, the county, the sheriff’s office, the county commissioners, the insurer of the police car? You sue the wrong one, and it is too late. Now what?

Thankfully for you, Georgia has forgiving pleading standards. Relation back is a legal fiction that assumes a claim was …

It’S Time To Resolve The Circuit Split: Unconstitutional Actions By Federal Employees Should Not Fall Within The Scope Of The Discretionary Function Exception Of The Ftca, Laney Ivey

Mercer Law Review

The Federal Torts Claims Act (FTCA) is an avenue for United States citizens to sue the federal government for torts committed by government employees within the scope of their work. Congress designed the FTCA to allow citizens to overcome the doctrine of sovereign immunity, which allows citizens to recover from injuries suffered at the hands of government agents. Under the FTCA, there are exceptions where recovery is not allowed; the most prominent exception is known as the discretionary function exception, under which discretionary actions by government employees are immune from liability under the FTCA.

Trial Practice And Procedure, John O'Shea Sullivan, Leesa M. Guarnotta

Mercer Law Review

The 2021 Survey period yielded decisions involving issues of first impression relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit. This Article analyzes recent trial practice developments in the Eleventh Circuit, including significant rulings in the areas of consumer debt collections, removal, jurisdiction and abstention, arbitration, and sanctions.

Factors Influencing The Credibility And Believability Of Victims Of Sexual Assault, Stephanie Carlson

Political Science Theses and Capstones

The purpose of this research is to answer the question of which factors that influence the believability of a woman who comes forward to disclose a sexual assault are the most impactful. My methodology consisted of conducting interviews with attorneys who have participated in both the defense and prosecution of criminal sexual conduct cases to evaluate whether the trends revealed in the literature on a macro scale apply to the micro-scale in northern Minnesota. Findings showed that the majority of patterns revealed in the literature did in fact influence the credibility of victims of sexual assault in Beltrami County, Minnesota …

Class Actions, Thomas M. Byrne, Stacey Mcgavin Mohr

Mercer Law Review

The United States Court of Appeals for the Eleventh Circuit’s 2021 class-action work featured an important decision on the existence of an independent ascertainability requirement for class certification. In an abrupt reversal of two unpublished opinions acknowledging the existence of such a requirement, the court aligned itself with most circuits that have addressed the question in demoting the ascertainability of class membership to a factor to be considered in establishing the manageability of a class action, rather than an independent requirement. The court’s other significant cases concerned class settlements and standing.

Creating A Civil Remedy In Georgia For Survivors Of Out-Of-State Childhood Sexual Abuse, Alexandra H. Bradley

Mercer Law Review

Sexual abuse casts long shadows and causes long-lasting effects on its survivors, particularly children. Especially tragic, most abused children are abused by an adult whom that child knows and trusts. This abuse by anyone, especially by a child’s parents or close family friend, often causes lifelong emotional damage. Survivors generally do not recognize the extent of their abuse until many years later.

This late onset or delayed discovery has made it difficult for courts to provide redress. Although technically children could sue their abuser when the abuse occurs, children generally do not know they have a cause of action, nor …

Government Discretion Advised (Even If It’S Unconstitutional): How The Eleventh Circuit Has Expanded The United States’S Immunity From Tort Suits, John Rodriquez

Mercer Law Review

Mackie Shivers, a sixty-four-year-old man, was stabbed in the eye by his mentally-ill cellmate with a pair of scissors. Although the attack left Shivers permanently blind, he received no legal remedy to compensate him for his injuries. This result is due, at least in part, to the United States Court of Appeals for the Eleventh Circuit’s decision to interpret the discretionary function exception to the Federal Torts Claim Act (FTCA) in a broader way than virtually all of its sister circuits. The holding by the Eleventh Circuit in Shivers v. United States bars FTCA claims under the exception even for …

So Help Me, God, Decide This Case: The Eleventh Circuit’S New Standard For Dismissing Religious Jurors During Deliberations, Amanda Claxton

Mercer Law Review

You are on trial for a crime. Maybe you did precisely what the government claims, though perhaps not. However, a judge will not decide your fate because you exercised your constitutional right to a jury trial. During deliberations, you hear that a juror practices a religion condemning those who commit the crime you are accused of. You feel the juror would unfairly prejudice your chances of walking away freely. To your dismay, the judge refuses to dismiss the juror. You ask whether allowing this prejudicial juror to determine your fate is legal. After United States v. Brown, it is. …

Foreign Antisuit Injunctions And The Settlement Effect, Connor Cohen

Northwestern University Law Review

International parallel proceedings, which are concurrent identical or similar lawsuits in multiple countries, often ask courts to balance efficiency and fairness against the speculative fear of insulting foreign nations. Some litigants abuse foreign duplicative litigation to exhaust their opponents’ resources and pressure them into settling out of court. This Note provides the first empirical evidence of such abuse of international parallel proceedings: when courts deny motions to enjoin foreign parallel litigation, the settlement rate rises significantly. Considering the results of this empirical project and its limitations, I encourage future studies on international parallel proceedings and settlement. I also argue for …

Prison And Jail Civil Rights/Conditions Cases: Longitudinal Statistics, 1970-2021, Margo Schlanger

Law & Economics Working Papers

These tables relating to prison and jail civil rights litigation in federal court update prior-published versions, using data available as of April 6, 2022.

The Tables show longitudinal statistics about case filings, features, and outcomes, for jail/prison civil rights and conditions cases and for the entire federal civil docket, grouped by case category.
List of tables:
Table A: Incarcerated Population and Prison/Jail Civil Rights Filings, FY1970–FY2021
Table B: Pro Se Litigation in U.S. District Courts by Case Type, Cases Terminated Fiscal Years 1996–2021
Table C: Outcomes in Prisoner Civil Rights Cases in Federal District Court, Fiscal Years 1988–2021
Table D: …

Upper Missouri Waterkeeper V. Epa, Clare Ols

Public Land & Resources Law Review

State water quality standards developed under the Clean Water Act play a key role in curtailing the negative environmental, economic, and human health impacts of water pollution. Under the state water quality regulatory framework, EPA may grant variances to state standards should the state demonstrate the compliance with its standards is infeasible for a certain pollutant discharger or waterbody. Montana DEQ developed a variance for nutrients based on evidence that compliance with those standards would cause economic harm. EPA approved Montana's nutrient pollutant variance, and Upper Missouri Waterkeeper challenged EPA's approval on the grounds that the variance violates the Clean …

Memorandum Of Amici Curiae Doug Rendleman & Caprice Roberts In Support Of Plaintiff: Estate Of Henrietta Lacks V. Thermo Fisher Scientific, Doug Rendleman, Caprice Roberts

Scholarly Articles

This brief addresses the law of unjust enrichment and its relationship to restitution has failed to state a valid cause of action for restitution relief. Defendant incorrectly insists that plaintiff must plead a tort to seek restitution remedies as well as Both arguments belie the basic tenets of unjust enrichment law. Simply, plaintiff may seek restitution remedies based either a separate tort nor an allegation of the lack of bona fide purchaser status is required to survive these challenges.