Litigation Commons^™

The Renaissance Of Permissive Interlocutory Appeals And The Demise Of The Collateral Order Doctrine, Michael E. Solimine

Akron Law Review

Reserving appeals to final judgments has a long history in the federal courts, as do exceptions to that rule. The problem has less been the existence of the exceptions, but rather their scope and application. This article addresses two of those exceptions. One is permissive interlocutory appeals codified in section 1292(b) of the Judicial Code. That exception, requiring the permission of both the trial and appellate courts, has numerous advantages over other exceptions, has been frequently touted as such by the Supreme Court, and has been applied in several recent high-profile cases. In contrast, the collateral order doctrine, an ostensible …

Judicial Disqualification On Appeal, Cassandra Burke Robertson, Gregory Hilbert

Akron Law Review

Adjudication by an impartial decision maker is one of the cornerstones of due process. The interest is so fundamental that constitutional due process guards against even the appearance of partiality, and federal judges are statutorily required to disqualify themselves in any proceeding in which their impartiality “might reasonably be questioned.” Courts and scholars alike have struggled with what it means to “reasonably question” a judge’s impartiality. That question has taken on greater salience in recent years, as deepening partisan divisions have increasingly led parties to express skepticism of judicial neutrality.

When a party files a motion to disqualify a judge …

Signed Opinions, Concurrences, Dissents, And Vote Counts In The U.S. Supreme Court: Boon Or Bane? (A Response To Professors Penrose And Sherry), Joan Steinman

Akron Law Review

Some commentators recently have argued for changes in how United States Supreme Court Justices communicate with everyone except perhaps other Justices of the Supreme Court and the Justices' assistants. Specifically, some commentators have urged that signed opinions and separate opinions, such as concurrences and dissents, stop being published in the official reports. One commentator also has advocated non‑publication of the vote count in Supreme Court decisions. Another has demanded unanimity, as required by due process.

In this piece, I offer my thoughts in response to these proposals.

I argue several reasons to doubt that a prohibition on publication of concurring …

Fixing The Broken System Of Assessing Criminal Appeals For Frivolousness, Andrew S. Pollis

Akron Law Review

This article seeks to end fifty years of confusion over how to proceed when a criminal defendant wants to appeal but appointed counsel sees no basis for doing so.

Practices vary among jurisdictions, but most require counsel to explain the predicament to the court—often at a level of detail that compromises the duty of loyalty to the client. Most also require the court to double-check counsel’s conclusion by conducting its own independent review of the record, thus burdening judges and blurring the important line between judge and advocate. And at no point in this process does the defendant have a …

Protecting The Social Utility Of Appraisal Arbitrage: A Case For Amending Delaware Law To Strengthen The Appraisal Remedy After Dell, Thomas J. Meriam

Brooklyn Law Review

The landscape of M&A litigation in Delaware has undergone a substantial transformation within the last decade. Almost every transaction involving the acquisition of a publicly traded company has attracted stockholder litigation. This note considers Delaware’s attempt to strike the right balance between deterring frivolous litigation and ensuring adequate stockholder protections. In particular, this note considers the social utility of Delaware’s appraisal remedy and the practice of “appraisal arbitrage.” This note puts forth reasons as to why a healthy market of appraisal arbitrage benefits all stockholders: a meaningful threat of appraisal litigation encourages better sales practices in the market for corporate …

Fee-Shifting Statutes And Compensation For Risk, Maureen S. Carroll

Articles

A law firm that enters into a contingency arrangement provides the client with more than just its attorneys' labor. It also provides a form of financing, because the firm will be paid (if at all) only after the litigation ends; and insurance, because if the litigation results in a low recovery (or no recovery at all), the firm will absorb the direct and indirect costs of the litigation. Courts and markets routinely pay for these types of risk-bearing services through a range of mechanisms, including state fee shifting statutes, contingent percentage fees, common-fund awards, alternative fee arrangements, and third-party litigation …

Trial Practice And Procedure, John O'Shea Sullivan, Michelle L. Mcclafferty, Tala Amirfazli, Adelyn B. Boleman

Mercer Law Review

The 2018 - 2019 survey period yielded noteworthy decisions relating to federal trial practice and procedure in the Eleventh Circuit, several of which involved issues of first impression. This article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of civil procedure, statutory interpretation, class actions, arbitration and subject matter jurisdiction.

Extraterritoriality As Choice Of Law, Carlos Manuel Vázquez

Georgetown Law Faculty Publications and Other Works

The proper treatment of provisions that specify the extraterritorial scope of statutes has long been a matter of controversy in Conflict of Laws scholarship. This issue is a matter of considerable contemporary interest because the Third Restatement of Conflict of Laws proposes to address such provisions in a way that diverges from how they were treated in the Second Restatement. The Second Restatement treats such provisions—which I call geographic scope limitations—as choice-of-law rules, meaning, inter alia, that the courts will ordinarily disregard them when the forum’s choice-of-law rules or a contractual choice-of-law clause selects the law of a state as …

What Is A Fair Price For Objector Blackmail? Class Actions, Objectors, And The 2018 Amendments To Rule 23, Elizabeth Cabraser, Adam N. Steinman

Faculty Scholarship

As part of a symposium addressing what the next 50 years might hold for class actions, mass torts, and MDLs, this Article examines a recent amendment to Rule 23 that offers a new solution to the persistent problem of strategic objections. Most significantly, Rule 23 now requires the district judge to approve any payments made to class members in exchange for withdrawing or forgoing challenges to a class action settlement. Although the new provision is still in its infancy, it has already been deployed to thwart improper objector behavior and to bring for-pay objection practice out of the shadows. The …

Enforcement Of The Americans With Disabilities Act: Remedying “Abusive” Litigation While Strengthening Disability Rights, Evelyn Clark

Washington and Lee Journal of Civil Rights and Social Justice

This Note explores the Americans with Disabilities Act and the private litigation used to enforce compliance. While the ADA was designed to be enforced by private citizens, many have called for reform to limit what they see as “abusive” litigants. This Note focuses on (1) the perceived problem of vexatious litigants abusing the ADA and its state counterparts to benefit monetarily, (2) the attempted solutions on both a state and federal level, and (3) recommended solutions that focus on protecting the rights of individuals with disabilities while limiting abusive litigation meant to extort businesses.

Yesterday I Was Lying: Creeping Preclusion Of Reciprocal Fee Awards In Residential Foreclosure Litigation, Eric A. Zacks, Dustin A. Zacks

St. John's Law Review

(Excerpt

As a result of the high volume of foreclosure litigation in the wake of the Great Recession, scholars have explored several outgrowths of the foreclosure crisis, developing a burgeoning body of research. Scholars and commentators have authored studies about a wide variety of foreclosure-related topics, ranging from the disparate racial effects of the housing crisis to the many legislative and court-instituted policies enacted to ameliorate the harsh reality faced by financially distressed homeowners, all the way through books examining the aftermath of the crisis and lessons learned from the entire experience.

Our previous contributions to this evolving body of …

Pay To Play? Campaign Finance And The Incentive Gap In The Sixth Amendment's Right To Counsel, Neel U. Sukhatme, Jay Jenkins

Georgetown Law Faculty Publications and Other Works

For nearly 60 years, the U.S. Supreme Court has affirmed that the Sixth Amendment to the U.S. Constitution guarantees felony defendants the right to counsel, regardless of their ability to pay. Yet nearly all criminal procedure scholars agree that indigent defense as practiced today falls far short of its initial promise. These scholars frequently cite a lack of political support, insufficient public funding, and a failure to address instances of inadequate legal representation, among other things, as causes for the underlying systemic dysfunction.

We contend that these conventional critiques are incomplete. Rather, indigent defense systems often fail due to poor …

A Logical And Lawful Application Of § 101 Jurisprudence: The Uspto’S 2019 Subject Matter Eligibility Guidance, Dustin Luettgen

Journal of Law and Policy

In recent years, 35 U.S.C. § 101 has been a topic of great concern within the patent bar due to uncertainty surrounding the patentability of inventions drawn to the three judicial exceptions to patent-eligible subject matter: abstract ideas, natural phenomena, and laws of nature. In response to this lingering uncertainty and in an effort to provide for the lawful and consistent application of patent law, the United States Patent and Trademark Office released guidance as to the subject matter eligibility of claims drawn to judicial exceptions. This Article provides a review of § 101 jurisprudence, summarizes the USPTO Guidance, and …

Who Sells? Testing Amazon.Com For Product Defect Liability In Pennsylvania And Beyond, Aaron Doyer

Journal of Law and Policy

Pennsylvania, like other states, has struggled over the past few decades to apply the policy principles of product defect law—a tort characterized by strict liability. Because strict liability bypasses the traditional requirement in tort that a plaintiff prove the defendant’s negligence, and instead requires only a showing that the plaintiff was injured by a product sold in a defective condition, these inquiries raise a deceptively simple question: who sells? Recently, in a landmark case in Pennsylvania, the Third Circuit made waves by declaring Amazon.com, an enormous online marketplace, the legal “seller” of a product shipped and sold by a vendor …

Law School News: Adjunct Professor Of The Year: David Coombs 05-13-2020, Michael M. Bowden

Life of the Law School (1993- )

No abstract provided.

Does Docket Size Matter? Revisiting Empirical Accounts Of The Supreme Court's Incredibly Shrinking Docket, Michael Heise, Martin T. Wells, Dawn M. Chutkow

Notre Dame Law Review

Drawing on data from every Supreme Court Term between 1940 and 2017, this Article revisits, updates, and expands prior empirical work by Ryan Owens and David Simon (2012) finding that ideological, contextual, and institutional factors contributed to the Court’s declining docket. This Article advances Owens and Simon’s work in three ways: broadening the scope of the study by including nine additional Court Terms (through 2017), adding alternative ideological and nonideological variables into the model, and considering alternative model specifications. What emerges from this update and expansion, however, is less clarity and more granularity and complexity. While Owens and Simon emphasized …

Ebay, Permanent Injunctions, And Trade Secrets, Elizabeth A. Rowe

Washington and Lee Law Review

This Article presents the first qualitative empirical review of permanent injunctions in trade secret cases. In addition, it explores the extent to which the Supreme Court’s patent decision in eBay v. MercExchange has influenced the analysis of equitable principles in federal trade secret litigation. Among the more notable findings are that while equitable principles are generally applied in determining whether to grant a permanent injunction to a prevailing party after trial, the courts are not necessarily strictly applying the four factors from eBay. The award of monetary relief does not preclude equitable injunctive relief, and courts can find irreparable harm …

Fmc Corp. V. Shoshone-Bannock Tribes, Seth T. Bonilla

Public Land & Resources Law Review

In 1998, FMC Corporation agreed to submit to the Shoshone-Bannock Tribes’ permitting processes, including the payment of fees, for clean-up work required as part of consent decree negotiations with the Environmental Protection Agency. Then, in 2002, FMC refused to pay the Tribes under a permitting agreement entered into by both parties, even though the company continued to store hazardous waste on land within the Shoshone-Bannock Fort Hall Reservation in Idaho. FMC challenged the Tribes’ authority to enforce the $1.5 million permitting fees first in tribal court and later challenged the Tribes’ authority to exercise civil regulatory and adjudicatory jurisdiction over …

Jural Entities, Real Parties In Controversy, And Representative Litigants: A Unified Approach To The Diversity Jurisdiction Requirements For Business Organizations, Charles A. Szypszak

Maine Law Review

The rules that make the federal courts available for the resolution of controversies between citizens of different states have often been described as placing an undue burden on the federal system. Congress has for the most part turned a deaf ear to calls by jurists and commentators for reform or even abolition of federal diversity jurisdiction, leaving the courts to struggle with difficult issues about the proper contours of the jurisdictional requirements. One recurring difficult issue is the manner in which citizenship is to be attributed to the investors who compose various business organizations. The general rule has been that …

The Truthsayer And The Court: Expert Testimony On Credibility, Michael W. Mullane

Maine Law Review

The purpose of this Article is to analyze the admissibility of expert testimony on credibility. State v. Woodburn serves as a lens to focus on the broader issues. The primary issue is an examination of expert testimony on credibility in light of the Federal Rules of Evidence and their progeny. The Rules of Evidence mandate admission or exclusion of expert testimony based on certain criteria. How are these criteria applied to expert testimony on credibility? How should they be applied? The surprising survivability of other criteria discarded by the Rules is also considered.