Litigation Commons^™

Opioid Settlement Funds: Do Not Neglect Patients With Pain, Mark C. Bicket, Barbara Mcquade, Chad M. Brummett

Articles

The opioid crisis has escalated in the setting of the COVID-19 pandemic to new extremes and has claimed more than half a million lives in the US since 2000. Lawsuits to address the civil and criminal liability of drug companies and other groups have originated from federal, state, local, and tribal jurisdictions. When successful, there will likely be billions of dollars and significant discretion as to how these funds are spent. Several groups have produced reports with principles to address the toll of addiction using settlement funds. However, they lack actionable strategies to address the needs of patients with pain, …

Collective Wisdom: When To Impeach With An Inconsistent Statement, A. J. Bellido De Luna

Faculty Articles

The recognition of multiple goals of cross-examination is nothing new. Despite early emphasis on cross-examination as being needed to expose “mendacity,” Dean Wigmore viewed cross-examination as the essence of the trial and truth-seeking process in the United States. He viewed it as capable of serving two ends: proving untruths and completing the story by eliciting facts that “remained suppressed or undeveloped” on direct examination, including “the remaining and qualifying circumstances of the subject of testimony, as known to the witness.” Precisely because of the presence of dual objectives, timing is everything. Said differently, assume a witness has information useful to …

The Elephant In The Room And Straw Men On Fire, Fay Faraday

Articles & Book Chapters

A great unacknowledged challenge in litigating systemic discrimination claims under the section 15 equality guarantee of the Canadian Charter of Rights and Freedoms1 is that claimants bear a double burden. Like all litigants, they must meet the burden of proving the elements of their legal claim. But, before they can do that, equality claimants must often first meet the extraordinary burden of dislodging judges’ phenomenological anchoring in worldviews shaped by privilege. Where judges lack lived experience of systemic oppression, claimants must convince them that oppression exists. This gulf between lived experiences — what I call the reality gap — is …

Civil Rights, Access To Counsel, And Injunctive Class Actions In The United States, Maureen Carroll

Book Chapters

According to a familiar story about class actions in the United States, aggregation promotes access to counsel by increasing the amount of money from which counsel fees can be taken. Courts usually award class counsel a percentage of the monetary recovery obtained on behalf of the class, and class treatment can turn a $30 case into a $3 million case. But what about class actions that do not involve monetary relief at all? Some civil rights plaintiffs seek to stop a violation, rather than to obtain compensation for past harm, and therefore choose to pursue only an injunction or declaratory …

A New Approach To Executory Contracts, John A.E. Pottow

Book Chapters

Few topics have bedeviled the bankruptcy community as much as the proper treatment of executory contracts under section 365 of the Bankruptcy Code. The case law is "hopelessly convoluted" and a "bramble-filled thicket." While many have struggled in the bootless task of providing coherence to the unwieldy corpus of case law and commentary, all would agree Jay Westbrook has been at the modern vanguard of this Sisyphean task. (1 assign Westbrook to the "modern" forefront, thereby relegating Vern Countryman, whose legacy in this domain rightly persists, to the annals of history, choosing as my perhaps arbitrary dividing line the adoption …

Are We There Yet? Discovery For The New Litigator, Erin Rhinehart, Leonard M. Niehoff

Articles

If the road is life, then discovery is litigation. It is how we reach our destination. Unfortunately, discovery is like getting there with someone in the backseat.

Anyone who has ever traveled with passengers, especially children, knows how it plays out. In the beginning, everybody is excited. Everyone gleefully piles into the car, eager to launch. No one has any trouble amusing themselves. A couple hours in, a bathroom break and gas station snack later, it hits. The adrenaline wears off and the tedium kicks in. And then you hear the dreaded cry coming from the rear: Are we there …

Recollections Refreshed And Recorded, Leonard M. Niehoff

Articles

Witnesses forget stuff. When they do, the evidence rules give us two tools to help solve the problem. Lawyers call one "refreshed recollection" and the other "past recollection recorded," labels just similar enough to guarantee confusion. Nevertheless, these principles get at very different things and are well worth the effort necessary to distinguish and understand them.

So how do we get there?

Scorched Border Litigation, Briana Beltran, Beth Lyon, Nan Schivone

Cornell Law Faculty Publications

Each year, employers bring hundreds of thousands of temporary foreign workers into the United States only to return them to their communities of origin when their visas end. During their short months working in the United States—whether in agricultural fields, hotels, traveling carnivals, or private homes—many of these workers experience violations of their rights: wages are stolen, injuries are ignored, and those who complain are punished on the spot or sent home.

Temporary foreign workers who choose to file a lawsuit to vindicate their rights typically do so once they are no longer in the United States, often litigating from …

The Insider Trading Prohibition Act: A Small Step Towards A Codified Insider Trading Law, Kayla Quigley

Fordham Journal of Corporate & Financial Law

Many have called for reform to insider trading law, as the current judge-made doctrine is ambiguous, complicated, and ultimately permissive of many instances of trading on nonpublic information. Indeed, Congress has attempted several times to pass a uniform insider trading statute. Most recently, in December 2019, the House of Representatives passed the Insider Trading Prohibition Act (“ITPA”). The legislation codifies many current principles of insider trading jurisprudence while also expanding potential insider trading liability. Moreover, it attempts to fix gaps in the law that various cases, such as United States v. Newman, have declined to address.

Among other flaws, …

The Forensic Interviewer At Trial: Guidelines For The Admission And Scope Of Expert Testimony Concerning A Forensic Interview In A Case Of Child Abuse (Revised And Expanded), Victor I. Vieth

Mitchell Hamline Law Review

No abstract provided.

The Cyan Decision And Its Impact On State-Level Securities Class Actions, B. John Torabi

Fordham Journal of Corporate & Financial Law

The Supreme Court’s decision in Cyan, Inc. v. Beaver County Employees Retirement Fund^† preserved the Securities Act of 1933’s bar on removing securities class actions brought in state court to federal court. The unanimous ruling cut against a nearly quarter-century long trend of pushing securities class action litigation to the federal courts. Cyan was resolved purely through statutory interpretation, leaving many of the underlying policy questions to be resolved by state courts and in future rulings.

This Note examines the intention of the drafters of the Securities Act of 1933 in designing a disclosure-focused regulatory scheme with a private …

Assertion And Hearsay, Richard Lloret

Dickinson Law Review (2017-Present)

This article explores the characteristics and functions of assertion and considers how the term influences the definition of hearsay under Federal Rule of Evidence 801. Rule 801(a) defines hearsay by limiting it to words and conduct intended as an assertion, but the rule does not define the term assertion. Courts and legal scholars have focused relatively little attention on the nature and definition of assertion. That is unfortunate, because assertion is a robust concept that has been the subject of intense philosophic study over recent decades. Assertion is not a mere cypher standing in for whatever speech or conduct one …

All Rise: Suiting Up When Showing Up For The Practice Of Law In The Covid-19 Virtual Legal Environment, Marissa Moran

Publications and Research

The age-old advice: “No matter how you feel, get up, dress up, and show up for work and life!” may be worth remembering as more legal professionals participate in virtual environments due to the COVID-19 mandated court closures.

Virtual court hearings, mediations, and meetings are taking place. Attorneys and legal educators have adapted to changes in how we meet clients and students by utilizing Blackboard Collaborative, Zoom, Cisco WebEx, Microsoft Teams, Google Meet/Hangouts, and Skype. Do such changes in our ways of meeting and communicating-within the virtual environment-bring with them a corresponding change in expectations of what is appropriate attire …

Precedent As Rational Persuasion, Brian N. Larson

Faculty Scholarship

The ways that judges and lawyers make and justify their arguments and decisions have profound impacts on our lives. Understanding those practices in light of theories of reasoning and argumentation is thus critical for understanding law and the society it shapes. An inquiry that explores the very foundations of all legal reasoning leads to a broad, important question: How do lawyers and judges use cited cases in their legal arguments? It turns out there is practically no empirical research to suggest the answer. As the first step in a comprehensive empirical effort to answer this question, this article performs a …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

The Trial Lottery, Kiel Brennan-Marquez, Darryl Brown, Stephen E. Henderson

Faculty Articles

Juries are the lifeblood of our criminal justice system. As the Framers clearly understood, and as the Supreme Court has consistently reaffirmed in recent years, their value goes far beyond accuracy in individual cases. Criminal juries are a democratic bulwark against overzealous state power; they keep prosecutors and police in check. Accordingly, the disappearance of traditional criminal trials is not just a problem for individual defendants. It is a problem for all of us. In this Article, we propose a novel mechanism to (partly) restore the criminal jury to its rightful pride of place—a trial lottery. In short, a small …

Taking Appropriations Seriously, Gillian E. Metzger

Faculty Scholarship

Appropriations lie at the core of the administrative state and are be­com­ing increasingly important as deep partisan divides have stymied sub­stan­tive legislation. Both Congress and the President exploit appropria­tions to control government and advance their policy agendas, with the border wall battle being just one of several recent high-profile examples. Yet in public law doctrine, appropriations are ignored, pulled out for spe­cial legal treatment, or subjected to legal frameworks ill-suited for appro­priations realities. This Article documents how appropriations are mar­ginalized in a variety of public law contexts and assesses the reasons for this unjustified treatment. Appro­priations’ doctrinal marginalization does not …

Choice Of Law And The Preponderantly Multistate Rule: The Example Of Successor Corporation Products Liability, Diana Sclar

Dickinson Law Review (2017-Present)

Most state rules of substantive law, whether legislative or judicial, ordinarily adjust rights and obligations among local parties with respect to local events. Conventional choice of law methodologies for adjudicating disputes with multistate connections all start from an explicit or implicit assumption of a choice between such locally oriented substantive rules. This article reveals, for the first time, that some state rules of substantive law ordinarily adjust rights and obligations with respect to parties and events connected to more than one state and only occasionally apply to wholly local matters. For these rules I use the term “nominally domestic rules …

Civil Rights Equity: An Introduction To A Theory Of What Civil Rights Has Become, John Valery White

Washington and Lee Law Review

This Article argues that civil rights law is better understood as civil rights equity. It contends that the four-decade-long project of restricting civil rights litigation has shaped civil rights jurisprudence into a contemporary version of traditional equity. For years commentators have noted the low success rates of civil rights suits and debated the propriety of increasingly restrictive procedural and substantive doctrines. Activists have lost faith in civil rights litigation as an effective tool for social change, instead seeking change in administrative forums, or by asserting political pressure through social media and activism to compel policy change. As for civil rights …

Front Matter, Jtaa Editors

Suffolk Journal of Trial and Appellate Advocacy

No abstract provided.