Geological Observatory of Coldigioco
PennState, The Dickinson School of Law: Penn State Law eLibraryNot a member yet
7581 research outputs found
Sort by
Counterclaim Preclusion: Foreseeability, Finality, and Fairness
No full textForeseeability, finality, and fairness are some of the primary interests to balance when analyzing the appropriate scope of preclusion doctrines. Scholars like Richard Freer, Alan Trammell, Lindsey Simon, and others have recently written about defense preclusion, fictional consent to a court’s jurisdiction, and the scope of claim preclusion. Existing scholarship has long recognized the confusion experienced by courts and litigants in cases involving preclusion doctrines. These recent discussions, however, do not address the continued problem that exists with the current stateby-state patchwork of counterclaim preclusion law. After a court enters judgment against a defendant in the plaintiff’s chosen forum (F1), when—if ever—should the F1 defendant be able to assert claims against the F1 plaintiff in a new forum (F2)? Where should courts draw the line, and what exceptions should apply? Should it matter if the defendant was properly served and never appeared such that default judgment was entered in F1? Currently, the answer to these questions depends entirely upon where the parties have brought suit. This non- uniform approach to counterclaim preclusion law makes it diff icult for litigants to foresee what may occur in future lawsuits, and it frequently leads to additional, costly litigation in F2 after a f inal judgment has been entered in F1. Further, the Restatement (Second) of Judgments (the Restatement) does not currently provide clear guidance on this issue. Litigants must therefore wade through jurisdiction-specific case law, which often conflates the various preclusion doctrines, in order to ascertain the preclusive effect of a prior judgment as it relates to counterclaims that could have been—but were not—asserted in the first forum. This Article offers important analysis of counterclaim preclusion and related doctrines and presents a solution to the identified problem: a proposal for revising the Restatement in a manner that will clarify these issues and provide a uniform approach to counterclaim preclusion. By revising the Restatement to provide clear and uniform guidance regarding the scope of counterclaim preclusion along with discrete exceptions, the Restatement’s drafters can empower courts to adopt a Restatement provision that provides foreseeability and finality in litigation while balancing fairness for litigants
Immigration, Due Process, and Executive Power
No full textThe current Administration\u27s approach to immigration law enforcement has augmented executive power and reduced procedural safeguards. That approach has raised questions under the Immigration and Nationality Act (INA) and the Constitution. Courts have often pushed back, although the Supreme Court has stayed judicial curbs on one area we\u27ll discuss: Removal to a country other than the home country of the noncitizen (sometimes called third-country removal (TCR)). In other areas, such as the First Amendment rights of foreign students and the reach of the Alien Enemies Act (AEA), adjudication is moving through the courts, although the Supreme Court has imposed limits on the use of the AEA
