Litigation Commons^™

Mineral Sands Resources (Pty) Ltd And Another V Redell And Others And Two Related Cases 2021 Sa 268 (Wcc), Dunia P. Zongwe

SAIPAR Case Review

This case teaches activists how to respond when they get SLAPPed. It introduced a defense mechanism to prevent lawsuits launched by big corporations to silence criticisms. North American lawyers commonly refer to these lawsuits as ‘strategic litigation (or lawsuits) against public participation (SLAPP). Two scholars from the United States of America (US) coined this acronym.2 And, in 2021, for the first time in South Africa, a court recognized the SLAPP phenomenon and accepted a defense against this kind of lawsuits.

When big corporations SLAPP activists and journalists, and their lawyers, judges should not slap back those corporations by accepting anti-SLAPP …

Endangered Claims, Brooke D. Coleman

William & Mary Law Review

Litigants—like organisms in an ecosystem—must evolve to survive our civil justice system. When procedural rules and doctrines that govern civil litigation change, litigants must respond. In some cases, litigants will adapt to the rules. In others, they will migrate to alternative fora to capitalize on the new environment’s rules. For those who cannot adapt or migrate, their claims will go extinct.

This Article chronicles the evolution story of federal civil litigation by examining how, in response to changing procedural rules and doctrines, parties and their claims adapt, migrate, or go extinct. It shows that throughout this evolution, claims by the …

A Pioneer Of The Law & Society Movement: One Eyewitness’S Reflections, Jayanth K. Krishnan

Articles by Maurer Faculty

There is arguably no more seminal a figure in the field of law and society than Professor Marc Galanter. That a Special Issue featuring dedications to several leading academic lights would be hosted by the University of Chicago Law Review is especially significant in terms of Marc’s inclusion because Chicago is where Marc came of age as a student.

Professor Richard Abel, some years back, chronicled Marc’s educational journey in Hyde Park. As Abel tells it—and as Marc has told me over the years—after finishing his B.A. and while continuing to work on his master’s degree from Chicago, Marc enrolled …

To Remove Or Not To Remove - Is That The Question In 1933 Act Securities Cases?, Tanya Pierce

Faculty Scholarship

Litigants spend immense time and money fighting over procedure. That fact is especially true for procedural rules concerning where a case may be heard—which, in the context of class actions, can determine the viability of claims almost regardless of their underlying merit. The potential for class certification, which tends to be greater in state than in federal courts, can transform claims that alone are too small to even justify suing into threats so large that defendants routinely use the words “judicial blackmail” to describe them. This paper focuses on a growing conflict between federal statutory removal provisions that arises in …

Immunity Confusion: Why Are Ohio Courts Unable To Apply A Clear Immunity Standard In School-Bullying Cases?, Liam Mcmillin

University of Cincinnati Law Review

No abstract provided.

Parity As Comparative Capacity: A New Empirics Of The Parity Debate, Meredith R. Aska Mcbride

University of Cincinnati Law Review

In 1977, Burt Neuborne published an article in the Harvard Law Review proclaiming that parity was a “myth”—that state courts could not be trusted to enforce federal constitutional rights. For the next 15 years, the question of parity (the equivalence of state and federal courts in adjudicating federal causes of action) was at the forefront of federal courts scholarship. But in the early 1990s, the parity debate ground to a halt after important commentators proclaimed it an empirical question that, paradoxically, could not be answered by any existing empirical methods. This article argues that proposition was unfounded at the time …

Defend Fired Workers Learn Litigation Skills, Unemployment Action Center

2021–2022 Flyers

No abstract provided.

The Informed Consent Doctrine In Legal Malpractice Law, Vincent R. Johnson

St. Mary's Journal on Legal Malpractice & Ethics

The doctrine of informed consent is now deeply embedded into the law of legal ethics. In legal malpractice litigation, the doctrine holds that a lawyer has a duty to disclose to a client material information about the risks and alternatives associated with a course of action. A lawyer who fails to make such required disclosures and fails to obtain informed consent is negligent, regardless of whether the lawyer otherwise exercises care in representing a client. If such negligent nondisclosures cause damages, the lawyer can be held accountable for the client’s losses.

Shifting the focus of a legal malpractice action from …

The Implausibility Standard For Environmental Plaintiffs: The Twiqbal Plausibility Pleading Standard And Affirmative Defenses, Celeste Anquonette Ajayi

Washington Law Review

Environmental plaintiffs often face challenges when pleading their claims. This is due to difficulty in obtaining the particular facts needed to establish causation, and thus liability. In turn, this difficulty inhibits their ability to vindicate their rights. Prior to the shift in pleading standards created by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, often informally referred to as “Twiqbal,” plaintiffs could assert their claims through the simplified notice pleading standard articulated in Conley v. Gibson. This allowed plaintiffs to gain access to discovery, which aided in proving their claims.

The current heightened pleading standard …

The Trial Preparation Procedures–Criminal, William Rhee, L. Richard Walker

Law Faculty Scholarship

In an effort to provide scholarship immediately useful to the criminal trial advocate, this article proposes a detailed systems workflow to plan and coordinate preparing for federal criminal trials called the Trial Preparation Procedures–Criminal (or "TrialPrepPro–Criminal" for short). The TrialPrepPro–Criminal upon the Trial Preparation Procedures-Civil, expounded in an earlier article.

Although there is an abundance of anecdotal "learning from doing" trial preparation guidance, empirically testable "learning about doing" trial preparation guidance is rare. We present our TrialPrepPro to learn more about doing.

The TrialPrepPro are modeled after the battle-proven military decision-making process used, with modifications, by all U.S. military services, …

Baby & Bathwater: Standing In Election Cases After 2020, Steven J. Mulroy

Dickinson Law Review (2017-Present)

The current consensus among commentators is that the flood of cases challenging the 2020 presidential election results was almost completely meritless. This consensus is correct as to the ultimate result, but not as to the courts’ treatment of standing. In their (understandable) zeal to reject sometimes frivolous attempts to overturn a legitimate election and undermine public confidence in our electoral system, many courts were too quick to rule that plaintiffs lacked standing. These rulings resulted in unjustified sweeping rulings that voters were not injured even if their legal votes were diluted by states accepting illegal votes; that campaigns did not …

Standing By To Protect Child Abuse Victims: Utilizing Standby Counsel In Lieu Of Personal Cross-Examination, Claire Murtha

Dickinson Law Review (2017-Present)

Child abuse is a pervasive problem in the United States. Often, the abused child’s word is the only evidence to prove the abuse in court. For this reason, the child’s testimony is critical. Testifying can pose a challenge for the abused child who must face her abuser in the courtroom, especially if that abuser personally questions her.

The United States Supreme Court has recognized the legitimate and strong interest the state has in protecting the psychological and physical well-being of children. When a child will face significant trauma and cannot reasonably communicate in the courtroom, the child can be questioned …

Manufacturing Sovereign State Mootness, Daniel Bruce

William & Mary Law Review

The idea that public defendants should receive any special treatment in the mootness context has been subject to intense criticism among commentators. Most notably, in the lead-up to the New York Rifle decision, Joseph Davis and Nicholas Reaves—two prominent First Amendment litigators from the Becket Fund for Religious Liberty—urged the Supreme Court to take the opportunity to correct the lower courts’ practice of blessing government abuse of the voluntary cessation doctrine. Indeed, the Supreme Court has never adopted a presumption in favor of government defendants such as the one applied by the Seventh Circuit in Killeen, and it failed to …

The Debate Over Disclosure In Third-Party Litigation Finance: Balancing The Need For Transparency With Efficiency, Alec J. Manfre

Brooklyn Law Review

The market for third-party litigation financing (TPLF) in the United States is facing unprecedented growth and popularity. The ever-increasing complexity and cost of legal disputes, especially in the commercial context, has made third-party financing an invaluable resource for both litigants in need of capital and investors seeking to diversify their portfolios with nontraditional assets. However, as the market continues to boom, so does the risk that TPLF will be used unethically. Critics of the industry are calling on regulators at both the state and federal levels to implement comprehensive disclosure requirements for TPLF at the outset of all civil litigation …

Some Thoughts On Supplemental Authorities Under Federal Rule Of Appellate Procedure 28(J) And Related Musings, Brian Wolfman

Georgetown Law Faculty Publications and Other Works

This essay--prompted by my work directing Georgetown Law's Appellate Courts Immersion Clinic--discusses letters filed under Federal Rule of Appellate Procedure 28(j). A "Rule 28(j) letter" is the federal appellate rules' principal mechanism for bringing supplemental authorities to an appellate court’s attention after the briefs have been filed. This essay covers (1) the Rule's basic attributes; (2) whether a 28(j) letter may be adversarial; (3) the types of authorities that may be--and should be--cited in a 28(j) letter; (4) proper timing for the filing of a 28(j) letter; (5) when and how to respond to a 28(j) letter; and (6) what …

"Recognized Stature" Revisited: Could "Community Standards" Rescue Restrictive "Recognized Stature" Definition In Castillo V. G&M Realty L.P.?, Caitlin M. Mcgrail

Villanova Law Review (1956 - )

No abstract provided.

Contract Fixer Upper: Addressing The Inadequacy Of The Force Majeure Doctrine In Providing Relief For Nonperformance In The Wake Of The Covid-19 Pandemic, Amy Sparrow Phelps

Villanova Law Review (1956 - )

No abstract provided.

Blazing A Path To Wilderness: A Case Study Of Impact Litigation Through The Lens Of Legislative History, Neil Kagan

Michigan Journal of Environmental & Administrative Law

Litigation can be a catalyst for legislation. Legislative history can reveal just how influential litigation is. The legislative history of the laws to designate wilderness in the 1980s provides an object lesson. It demonstrates that litigation both pushed Congress to act and shaped the legislation Congress enacted. This is especially true of the watershed year of 1984. That year, Congress enacted more wilderness laws and added more wilderness areas to the National Wilderness Preservation System in more states than in any other year. The legislative history of the 1984 wilderness laws embedded in bills, hearings, committee meetings, committee reports, and …

Interstate Pollution And The Quandary Of Personal Jurisdiction, Cedar H. Hobbs

Michigan Journal of Environmental & Administrative Law

Current Supreme Court personal jurisdiction analysis does not clearly support a finding of personal jurisdiction for out of state polluters in an interstate toxic tort. Still, some courts, including the Ninth Circuit, have attempted to find personal jurisdiction in these cases, but in doing so have employed tenuous analysis that can result in inconsistent case law. This Note argues that there is a better analytical framework which reemphasizes the role played by territorial borders in personal jurisdictional analysis. Through employing this framework, courts can find personal jurisdiction in interstate toxic torts while also preserving analytically consistent case law.

The World Of Private Terrorism Litigation, Maryam Jamshidi

Michigan Journal of Race and Law

Since 9/11, private litigants have been important players in the “fight” against terrorism. Using several federal tort statutes, these plaintiffs have sued foreign states as well as other parties, like non-governmental charities, financial institutions, and social media companies, for terrorism-related activities. While these private suits are meant to address injuries suffered by plaintiffs or their loved ones, they often reinforce and reflect the U.S. government’s terrorism-related policies, including the racial and religious discrimination endemic to them. Indeed, much like the U.S. government’s criminal prosecutions for terrorism-related activities, private terrorism suits disproportionately implicate Muslim and/or Arab individuals and entities while reinforcing …