Litigation Commons^™

It’S Worth Whatever Someone Paid For It: How Courts Have Misinterpreted Bfp’S Reasoning, Jacob Ryder

Dickinson Law Review (2017-Present)

Historically, bankruptcy courts have used the Bankruptcy Code’s avoidance powers—fraudulent conveyances in § 548 and preferential transfers in § 547—to avoid pre-bankruptcy-petition transfers. These avoidance powers were used even when the transfer in question was a mortgage or tax foreclosure sale. This has changed in response to the U.S. Supreme Court’s opinion in BFP v. Resolution Trust Corp. The BFP Court concluded that § 548 could not be used to avoid a mortgage foreclosure sale that complied with state foreclosure law. To do so, the Court had to interpret the operative language in § 548: “reasonably equivalent value.” The Court …

What Is A “Case”?, Lynn M. Mather

Journal Articles

This article interrogates the concept of a “case” in court, in an effort to clarify underlying concerns in debates over whether there is “too much” or “too little” litigation. One perspective on litigation takes a bottom-up view, examining the considerations and motives of disputing parties who file civil claims. This perspective includes theories about litigation and social structure, economics, dispute transformation, political participation, and psychology. An alternative top-down view examines litigation from the perspective of government, including its interest in dispute resolution, social control, and institutional capacities of courts. The article reviews and critiques existing literature on these perspectives and …

Considering The Therapeutic Consequences Of Recent Reforms To Civil Statutes Of Limitations For Child Sexual Abuse Claims, Emma Hetherington

Scholarly Works

In recent years, child sexual abuse has emerged as a major topic of news, documentaries, and Hollywood films. Public attention on child sexual abuse, including the Boston Globe's reporting on the sexual abuse of children by priests in the Catholic Church, sexual abuse of elite gymnasts, and the #MeToo movement, have brought increased attention to the issue, sparking calls for reform and access to justice. State legislatures across the country have answered these calls for reform by seeking to improve civil statutes of limitation in order to increase survivor access to justice. Between 2002 and 2020, forty-eight states and the …

Rwu Law News: The Newsletter Of Roger Williams University School Of Law 04-2021, Michael M. Bowden, Barry Bridges, Political Roundtable

Life of the Law School (1993- )

No abstract provided.

The Rule Of Five Guys, Lisa Heinzerling

Michigan Law Review

A Review of The Rule of Five: Making Climate History at the Supreme Court. by Richard J. Lazarus.

What Is Cultural Misappropriation And Why Does It Matter? 03-31-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

The Rcra Citizen Suit Provision And The Private Remedy Of Restitution After Kfc Western, Inc. V. Meghrig And Furrer V. Brown: Reasonable Minds May Differ, J. Thomas Blaine Lewis

Journal of Natural Resources & Environmental Law

No abstract provided.

Preclusion Of Citizens' Suits Under The Clean Water Act, Elizabeth Mckinney

Journal of Natural Resources & Environmental Law

No abstract provided.

How To Restore Balance To Libel Law, Glenn Harlan Reynolds

Tennessee Law in the News

No abstract provided.

Force Majeure Implications Of Acid Rain Legislation: The Litigation Battle Of The 1990s, John R. Rhorer Jr., Penny R. Warren

Journal of Natural Resources & Environmental Law

No abstract provided.

Disrupting Frivolous Defenses, Thomas D. Russell

Sturm College of Law: Faculty Scholarship

Judge Milton I. Shadur was a disrupter of frivolous defenses. In 2018, Judge Shadur died at the age of 93 after 37 years as a judge of the United States District Court for the Northern District of Illinois. Sua sponte, Judge Shadur reviewed civil answers, and disrupted the pleading of frivolous defenses. Sua Sponte Shadur—as some lawyers called him—rejected answers that departed from or ignored Rule 8 of the Federal Rules of Civil Procedure.

In 2001, Judge Shadur issued an Appendix to an order in State Farm v. Riley, 199 F.R.D. 276 (N.D. Ill. 2001) with his expectations regarding how …

The Economics Of Class Action Waivers, Albert H. Choi, Kathryn E. Spier

Law & Economics Working Papers

Many firms require consumers, employees, and suppliers to sign class action waivers as a condition of doing business with the firm, and the US Supreme Court has endorsed companies' ability to block class actions through mandatory individual arbitration clauses. Are class action waivers serving the interests of society or are they facilitating socially harmful business practices?

This paper synthesizes and extends the existing law and economics literature by analyzing the firms' incentive to impose class action waivers. While in many settings the firms’ incentive to block class actions may be aligned with maximizing social welfare, in many other settings it …

Brief Of Complex Litigation Law Professors As Amici Curiae In Support Of Respondent, Myriam E. Gilles

Amicus Briefs

The amici are law professors who teach and write in the field of federal civil procedure and complex litigation. Amici share an interest in presenting this Court with an impartial view on the function of the class action and its relationship to the law of Article III justiciability to inform the question presented in this case.

The Impact Of Sebben In Federal Black Lung Litigation, Elizabeth Hopkins

Journal of Natural Resources & Environmental Law

No abstract provided.

Diligence And Belated Appeals: Ark R. App P.-Civ. 4(B)(3) In Theory And Practice, Johnathan D. Horton

Arkansas Law Review

A series of Arkansas appellate decisions addresses a recurring issue—the entry of a final order without notice to one or more litigants. Appellate deadlines run from the date of entry of a final order, so the lack of notice typically results in the inability to perfect an appeal, as a party unaware of the entry of a final order is unlikely to timely perfect an appeal. This troublesome issue has arisen in Arkansas with sufficient frequency to merit a specific provision in the Arkansas Rules of Appellate Procedure—Civil.4 If a party can satisfy its requirements, Rule 4(b)(3) of the Arkansas …

The Opioid Crisis Or Climate Change: Which Is More Likely To Succeed Under The Tobacco Litigation Model?, Elizabeth W. De Leon

Texas A&M Law Review

Societal problems can occasionally have legal solutions, and several tools exist to implement change, including litigation and regulation. However, what elements make a societal problem more suitable for litigation or regulation? This Article examines four different societal issues (tobacco use, obesity, opioid addiction, and climate change) to determine whether litigation or regulation is the more appropriate route for success. The tobacco litigation serves as a successful example, while the fast food litigation serves as an unsuccessful example. Six signs of success are derived from the tobacco litigation: a large settlement agreement, evidence of corporate wrongdoing, change in public opinion, the …

Preserving Issues For Appeal In Nevada's Federal Courts, Micah Echols, Tom Stewart

Nevada Law Journal Forum

Attorneys in federal courts across the country, including in the District of Nevada, are aware of the age-old rule that, generally, new issues cannot be raised for the first time on appeal. The question then becomes, how are these issues properly raised, and preserved, in the district court so that they are preserved for an appeal before the United States Court of Appeals for the Ninth Circuit or, ultimately, the Supreme Court of the United States? This article provides guiding principles based upon federal case law and the Federal Rules of Civil Procedure to answer these questions on preserving error …

2nd Annual Women In Law Leadership Lecture: A Fireside Chat With Debra Katz, Esq. 03-03-2021, Roger Williams University School Of Law

School of Law Conferences, Lectures & Events

No abstract provided.

Continuous Burdens Of Proof, Emily Spottswood

Nevada Law Journal

The burden of proof is an essential mechanism to ensure that cases are decided fairly. Our existing proof burdens, unfortunately, have a number of surprising downsides. Conventional burdens of proof are mathematically discontinuous. This means that a tiny shift in a jury’s confidence in guilt can lead to a dramatic change in consequences for the parties in a case.

This Article explores the costs and benefits of an alternative approach to deciding cases, the continuous burden of proof, and concludes that adopting the right kind of continuous burden would help make our justice system fairer, more equitable, and more effective …

A Fiduciary Judge's Guide To Awarding Fees In Class Actions, Brian T. Fitzpatrick

Vanderbilt Law School Faculty Publications

It is often said that judges act as fiduciaries for the absent class members in class action litigation. If we take this seriously, how then should judges award fees to the lawyers who represent these class members? The answer is to award fees the same way rational class members would want if they could do it on their own. In this Essay, I draw on economic models and data from the market for legal representation of sophisticated clients to describe what these fee practices should look like. Although more data from sophisticated clients is no doubt needed, what we do …