Litigation Commons^™

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 …

Preserving Issues For Appeal In The Nevada State District Courts Under Nevada's New 2019 Rules Of Civil Procedure, Micah Echols, Tom Stewart

Nevada Law Journal Forum

Practicing attorneys are aware of the age-old rule of appellate practice that new issues cannot be raised for the first time on appeal. But, how are these issues properly raised, and preserved, in the district courts so that they are preserved for an appeal before the Nevada Court of Appeals or the Nevada Supreme Court? This article provides guiding principles based upon Nevada case law and the newly-revised 2019 Nevada Rules of Civil Procedure to answer these questions on preserving error for an appeal in Nevada’s state courts.

Special State Standing Is Environmental: Clarifying Massachusetts V. Epa, Dorothea Allocca

William & Mary Environmental Law and Policy Review

When the Court granted states “special solicitude in [its] standing analysis” in Massachusetts v. EPA, it left lower courts with more questions than answers. While legal scholars continue to debate these questions thirteen years later, the practical impacts of Massachusetts v. EPA are coming into focus. Today states are suing the federal government, often in multistate coalitions, to enforce or challenge federal administrative policies. This intergovernmental, public-law litigation increased dramatically during the Obama administration and has further skyrocketed since January 2017. States do not exclusively rely upon special state solicitude in suing the federal government. However, this lowered procedural bar …

Could Changes To The Endangered Species Act Actually Threaten Species?, Manuel L. Colon Jr.

Villanova Environmental Law Journal (1991 - )

No abstract provided.

Sonner V. Premier Nutrition Corp., Ruth Dapper, Bryce Young

Notre Dame Law Review Reflection

When sitting in diversity jurisdiction, must a federal court apply federal equitable principles when deciding state law claims, even if state law may provide a different outcome? That was the question before the United States Court of Appeals for the Ninth Circuit in the case of Sonner v. Premier Nutrition Corp. Although the Ninth Circuit’s published opinion relies on “seventy-five years” of unchanged law, the opinion joins a long list of cases that continue to help clarify the tenets from Erie Railroad Co. v. Tompkins and inform the courts and practitioners on the relationship between state and federal authority …

Indoor Rock Climbing: The Nuts And Bolts Of Routesetting Copyright Protection Post-Star Athletica, Julie Tamerler

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Shut Up And Pitch: Major League Baseball's Power Struggle With Minor League Players In Senne V. Kansas City Royals Baseball Corp., Bernadette Berger

Jeffrey S. Moorad Sports Law Journal (1994 - )

No abstract provided.

Lawyers On Auction - Protecting Class Members, Ittai Paldor

University of Cincinnati Law Review

The inadequacy of class settlements plagues mass litigation. Virtually all class actions settle, but a plethora of case law and academic writings shows that class attorneys often walk away from these settlements with a hefty fee, while class members receive illusory benefits. Class counsel may intentionally sell out class members by agreeing to a suboptimal settlement in return for increased fees. Class counsel may also genuinely miscalculate the best attainable settlement. In both cases, the mechanisms currently in place to protect class members—mainly court oversight—fail miserably.

This Article develops a simple solution: once a settlement is reached, appointment as class …

Cle Working Paper No.1/2021--Grassroots And Litigation-Based Approaches To Advancing Indigenous Rights: Lessons From Extractive Industry Resistance In Mesoamerica, Justin Wiebe

Centre for Law and the Environment

Indigenous peoples are frequently recognized as excellent stewards of their traditional territories. These territories, which often exhibit extraordinary levels of biodiversity, face disproportionate and growing threats from extractive industry. In opposing these threats, Indigenous peoples increasingly rely on internationally-defined Indigenous rights, including those set out in UNDRIP and ILO Convention 169. It is uncertain, however, how these rights are most effectively advanced. In this paper, I tease out strategies — both grassroots-based and litigation-based — that show promise in this regard. Drawing on Waorani resistance to an oil auction in Ecuador and Indigenous resistance to a large-scale mining project in …

Predicting Supreme Court Behavior In Indian Law Cases, Grant Christensen

Michigan Journal of Race and Law

This piece builds upon Matthew Fletcher’s call for additional empirical work in Indian law by creating a new dataset of Indian law opinions. The piece takes every Indian law case decided by the Supreme Court from the beginning of the Warren Court until the end of the 2019-2020 term. The scholarship first produces an Indian law scorecard that measures how often each Justice voted for the “pro- Indian” outcome. It then compares those results to the Justice’s political ideology to suggest that while there is a general trend that a more “liberal” Justice is more likely to favor the pro-Indian …

The Threat Of Deepfakes In Litigation: Raising The Authentication Bar To Combat Falsehood, Agnieszka Mcpeak

Vanderbilt Journal of Entertainment & Technology Law

Deepfakes are all over the internet—from shape-shifting comedians and incoherent politicians to disturbingly realistic fake pornography. Emerging technology makes it easier than ever to create a convincing deepfake. What used to take significant time and money to develop is now widely available, often for free, thanks to rapid advances in deepfake technology.

Deepfakes threaten individual rights and even democracy. But their impact on litigation should not be overlooked. The US adversarial system of justice is built on a foundation of seeking out the truth to arrive at a just result. The Federal Rules of Evidence serve as an important framework …

Expert Malpractice, James Steiner-Dillon

Utah Law Review

The provision of expert testimony in litigation has become a big business. The paradigmatic testifying expert is no longer the “amateur”expert who maintains a separate professional identity and testifies only once, or at most sporadically, in litigation to which their expertise is uniquely pertinent. Rather, they are a professional provider of litigation support services who spends a substantial part of their time, and derives a substantial part of their income from, consulting on pending or contemplated lawsuits. Legal rules concerning the provision of expert testimony continue to apply the former, obsolete paradigm of the testifying expert.

This conflict of paradigms …

Regulatory Responses To Data Privacy Crises And Their Ongoing Impact On E-Discovery, Teo Marzano

Global Business Law Review

This note argues that advancements in technology and data analysis have reduced the efficacy of the legal data privacy framework in the United States. Furthermore, foreign law blocking statutes expose litigants and corporations to increased data liability. Indeed, not only do consumers lack adequate legal remedies, but litigants face uncertain legal liability and increased costs. Simply put, updated technology requires updated laws. Better data management protects consumers and data value. A legal framework with clear guidelines for protecting data is needed.

Still, data access is integral to litigation, and courts must balance the need for data against the need for …

Is A Taxation Law Required To Combat Obesity In Uae And Jordan?, Ibrahim Al-Shawabkeh

UAEU Law Journal

Utilizing tax as a financial instrument to combat obesity is an accepted idea internationally, though it is the subject of profound debate among proponents and opponents. This idea has been implemented in comparative tax legislation. However, upon reviewing the works of jurists and specialists in economics and public policy in the Arab world, one concludes that that idea has not been considered thoroughly. This article, therefore, seeks to present the idea of diet tax to researchers in the Arab world so that it may be studied from all its legal, economic, and political aspects. The topical question raised in this …

Laypeople As Learners: Applying Educational Principles To Improve Juror Comprehension Of Instructions, Max Rogers

Northwestern University Law Review

The U.S. Constitution enshrines the jury in a sacred space within the American judicial system. Yet there are troubling signs that, notwithstanding their best efforts, jurors struggle to fulfill their duties. In particular, substantial empirical research indicates that jurors struggle to understand and, consequently, to apply the instructions given to them by the judge just prior to deliberations. Various mechanisms have been proposed— and in some cases adopted—to improve jurors’ comprehension of instructions and the quality of the deliberations that follow. Among these are rewriting jury instructions in “plain English,” permitting jurors to take notes and ask questions of witnesses, …

Law School News: Professor Gonzalez Is 2020 Rhode Island Lawyer Of The Year 01/11/21, Barry Bridges, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.