Litigation Commons^™

The Ever-Changing Landscape Of Informed Consent And Whether The Obligation To Explain A Procedure To The Patient May Be Delegated, Samuel D. Hodge, Maria Zambrano Steinhaus

Arkansas Law Review

Informed consent is an integral part of the shared decision making process and requires a patient be informed of the benefits, risks and alternatives to a medical procedure. This information, which requirement has been codified into the law and practice of every healthcare provider, helps a patient decide whether to proceed with the recommended treatment plan. Informed consent has its foundation in the ethical notion of patient autonomy and fundamental human rights. After all, it is the patient’s decision to determine what may be done to his or her body and to ascertain the risks and benefits before undertaking a …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

No abstract provided.

Rehabilitating The Nuisance Injunction To Protect The Environment, Doug Rendleman

Washington and Lee Law Review

The Trump Administration has reversed the federal government’s role of protecting the environment. The reversal focuses attention on states’ environmental capacity. This Article advocates more vigorous state environmental tort remedies for nuisance and trespass. An injunction is the superior remedy in most successful environmental litigation because it orders correction and improvement. Two anachronistic barriers to an environmental injunction are the New York Court of Appeals’ decision, Boomer v. Atlantic Cement, and Calabresi and Melamed’s early and iconic law-and-economics article, One View of the Cathedral. This Article examines and criticizes both because, by subordinating the injunction to money damages, they undervalue …

An Alternative Path To Rule Of Law? Thailand's Twenty-First Century Administrative Courts, Frank Munger

Indiana Journal of Global Legal Studies

This study examines why courts made sense to those who established them and how the courts' authority is being utilized. For relatively powerless and resource-poor litigants, barriers to litigation may be many, but when these barriers are overcome, administrative courts exercise extraordinary influence, even when they fail to render a decision fully vindicating a plaintiffs legal rights. Administrative courts serve multiple functions, not only by exercising power, in the famed words of Chief Justice Marshall, "to say what the law is," 13 but also by decentering the concentrated power of Thailand's insular and tradition bound ministries as well as its …

Enhanced Patent Infringement Damages Post-Halo And The Problem With Using The Read Factors, Betul Serbest

Chicago-Kent Law Review

The United States Patent Act allows a patent holder to recover treble damages for “willful infringement.” The standard for willful infringement has changed over the years, with the United States Supreme Court providing the most recent explanation of what is “willful” in Halo Electronics, Inc. v. Pulse Electronics, Inc. in 2016. Courts, however, continue to use a set of factors set forth in Read Corp. v. Portec, Inc. in 1992 to aid their discretion in awarding willful infringement enhanced damages. In this article, I argue that at least two of the Read factors are inconsistent with the Supreme Court’s Halo …

The Discrimination Presumption, Joseph A. Seiner

Notre Dame Law Review

Employment discrimination is a fact in our society. Scientific studies continue to show that employer misconduct in the workplace is pervasive. This social science research is further supported by governmental data and litigation statistics. Even in the face of this evidence, however, it has never been more difficult to successfully bring a claim of employment discrimination. After the Supreme Court’s controversial decisions in Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, all civil litigants must sufficiently plead enough facts to give rise to a plausible claim. Empirical studies show that this plausibility test has been rigidly applied in …

The New Oral Argument: Justices As Advocates, Tonja Jacobi, Matthew Sag

Notre Dame Law Review

No abstract provided.

The Demise Of § 1983 Malicious Prosecution: Separating Tort Law From The Fourth Amendment, Erin E. Mcmannon

Notre Dame Law Review

The common-law tort of malicious prosecution originally developed to provide a remedy for plaintiffs who were unjustly prosecuted in a criminal proceeding. Today, malicious prosecution actions can be brought to redress wrongful civil actions as well. The “central thrust” of an action for malicious prosecution is a right not to be involved in an unjustified litigation.

This Note suggests that the confusion in this area of law derives from the use of the language of malicious prosecution tort law to describe what really amounts to a Fourth Amendment seizure claim under § 1983. There is no constitutional right to be …

Specialized Trial Courts In Patent Litigation: A Review Of The Patent Pilot Program's Impact On Appellate Reversal Rates At The Five-Year Mark, Amy Semet

Journal Articles

Do specialized trial court judges make more accurate decisions in patent law cases? In 2011, Congress passed a law setting up a ten-year patent law pilot program to enhance expertise in patent litigation by funneling more trial court decisions to fourteen selected district courts. Now that the five-year mark has passed, has the program had its intended effect of increasing accuracy, as measured by less reversal by the appellate court? In this Article, I analyze over 20,000 trial-court patent cases filed from late 2011 to 2016, focusing specifically on whether cases heard by district court judges participating in the patent …

"Sorry" Is Never Enough: How State Apology Laws Fail To Reduce Medical Malpractice Liability Risk, W. Kip Viscusi, Benjamin J. Mcmichael, R. Lawrence Van Horn

Vanderbilt Law School Faculty Publications

Based on case studies indicating that apologies from physicians to patients can promote healing, understanding, and dispute resolution, 38 states have sought to reduce litigation and medical malpractice liability by enacting apology laws. Apology laws facilitate apologies by making them inadmissible in subsequent malpractice trials.

The underlying assumption regarding the potential efficacy of these laws is that, after receiving an apology, patients will be less likely to pursue a malpractice claim and will be more likely to settle those claims that are filed. However, once a patient has been made aware that the physician has committed a medical error, the …

Champions For Justice & Public Interest Auction 2019, Roger Williams University School Of Law

School of Law Public Interest Auction

No abstract provided.

Nevor V. Moneypenny Holdings, Llc: Availability Of Prejudgment Interest For Mixed Maritime Law And Jones Act Claims, Adam S. Bohanan

Ocean and Coastal Law Journal

In maritime personal injury cases, courts have traditionally seen prejudgment interest as part of the compensation due to a prevailing plaintiff. The goal of ensuring the fullest compensation possible has long been recognized as a basic principle of admiralty law. However, federal appellate courts are split over whether to award prejudgment interest on a mixed claim under general maritime law and the Jones Act. This Note explores this issue in Nevor v. Moneypenny Holdings, LLC, which was the first time the question had been raised in the First Circuit. The Fifth and Sixth Circuits have held that because prejudgment interest …

Between "The Rock" And A Hard Case: Application Of The Emoluments Clauses For A New Political Era, Douglas R. Hume

Pepperdine Law Review

The election of Donald Trump in 2016 rewrote some of the traditional rules for electing presidents in the United States. Does his election portend a new breed of presidential candidate, arising from the business and celebrity arena rather than traditional government service? If so, the potential for candidates with more diverse and global business interests (and the conflicts of interest that come along with them) becomes more likely. This Essay discusses the historical intent of the Emoluments Clauses and the issue of potential presidential conflicts of interest. This Essay also examines the litigation efforts filed against President Trump to force …

How Evidence Of Subsequent Remedial Measures Matters, Bernard Chao, Kylie Santos

Sturm College of Law: Faculty Scholarship

Federal Rule of Evidence 407 prohibits plaintiffs from introducing evidence of subsequent remedial measures to show that the defendant is to blame. Among its purported justifications, the rule prevents hindsight bias from unduly influencing jury decisions. Nonetheless, plaintiffs often take advantage of the rule’s numerous exceptions to introduce evidence of remedial measures for other purposes (e.g. to prove feasibility). Fearing that the exceptions could swallow the rule, some courts will even exclude evidence that fits into one of these exceptions because it is ostensibly too prejudicial. Alternatively, other courts instruct juries that they should only use the evidence for the …

Demystifying Nationwide Injunctions, Alan M. Trammell

Scholarly Articles

The phenomenon of nationwide injunctions—when a single district court judge completely prevents the government from enforcing a statute, regulation, or policy—has spawned a vigorous debate. A tentative consensus has emerged that an injunction should benefit only the actual plaintiffs to a lawsuit and should not apply to persons who were not parties. These critics root their arguments in various constitutional and structural constraints on federal courts, including due process, judicial hierarchy, and inherent limits on “judicial power.” Demystifying Nationwide Injunctions shows why these arguments fail.

This Article offers one of the few defenses of nationwide injunctions and is grounded in …

Evidence Without Rules, Bennett Capers

Notre Dame Law Review

Much of what we tell ourselves about the Rules of Evidence—that they serve as an all-seeing gatekeeper, checking evidence for relevance and trustworthiness, screening it for unfair prejudice—is simply wrong. In courtrooms every day, fact finders rely on “evidence”—for example, a style of dress, the presence of family members in the gallery, and of course race—that rarely passes as evidence in the formal sense, and thus breezes past evidentiary gatekeepers unseen and unchecked. This Article calls much needed attention to this other evidence and demonstrates that such unregulated evidence matters. Jurors use this other evidence to decide whether to find …

Saliency, Anchors & Frames: A Multicomponent Damages Experiment, Bernard Chao

Sturm College of Law: Faculty Scholarship

Modern technology products contain thousands, sometimes hundreds of thousands, of different features. Nonetheless, when electronics manufacturers are sued for patent infringement, these suits typically accuse only one feature, or in more complex suits, a handful of features, of actual patent infringement. But damages verdicts often do not reflect the relatively small contribution an individual patent makes to an infringing product. One study observed that verdicts in these types of cases average 9.98% of the price of the entire product. While both courts and commentators have blamed the law of patent damages, the role cognitive biases play in these outsized damages …

Focusing Patent Litigation, Bernard Chao

Sturm College of Law: Faculty Scholarship

Patent litigation is often called the “sport of kings.” While that phrase may not be appropriate for all patent disputes, it is an apt description of the high-stakes cases. Attorneys in these lawsuits tend to zealously advocate for their respective sides by asserting every argument that they can legitimately raise. Patentees often assert an excessive number of patent claims and even pile on unnecessary patents. Some of these claims may be well-founded. But so long as they can make a colorable infringement argument, patentees typically include many weaker claims too. Likewise, patent defendants respond with burdensome and duplicative invalidity defenses. …

Probate Funding And The Litigation Funding Debate, Jeremy Kidd

Articles

Third-party funding of legal claims is becoming more common, and increasingly more controversial. Whether in the legislative arena or in the courts, the fight over whether and how independent parties might provide funding to litigants has become heated. The fight now threatens to spill over into the probate realm, where funders have begun purchasing probate rights from putative heirs. These probate funding transactions share many characteristics with broader litigation funding but also differ in important respects. The meager existing literature tends to address the issue in a pre-biased and methodologically unsound way, making it impossible to properly assess the nature …

Technology Assisted Review (Tar) Guidelines, Bolch Judicial Institute

Bolch Judicial Institute Publications

In the winter of 2016, more than 50 e-discovery experts volunteered to develop and draft guidelines providing guidance to the bench and bar on the use of technology assisted review (TAR).

This document explains the TAR process and offers “best practices,” which are intended to provide a protocol on whether and under what conditions TAR should be used. It provides a strong record and roadmap for the bench and bar, which explain and support the use of TAR in appropriate cases.

As with any group product of this nature, where some consensus must be reached, the drafters and other participants …