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Interaction of E-Discovery and the United States Supreme Court\u27s Decisions in Twombley and Iqbal
No full textConstitutional Protection for Non-Media Defendants: Should There Be a Distinction Between You and Larry King?
Get PDFThis Comment considers the current law, contemplates the rapid growth of technology and proposes an answer to the following two questions: Should there be a distinction between media and nonmedia defendants? If so, who should be offered more protection: You or Larry King? To answer these questions, Part I summarizes traditional and current defamation law and the First Amendment protections that have been meted out by the courts. Part II discusses the court decisions that have noted whether a distinction between media and nonmedia defendants is meritorious and critiques those conclusions in light of the development of defamation law. Part III addresses the evolution of the media by comparing early defamation actions with the current circumstances facing American society, where newspapers are fading away and the internet is on the rise. Additionally, this subsection explains the necessity of defining the word media, and theorizes how the courts might do so in light of the rapid growth of technology. Finally, Part IV contemplates whether there should be a distinction between media and nonmedia defendants, explains the benefits and downfalls of each approach, and predicts what may happen in the future given that the ability to communicate defamatory statements now takes mere seconds and has a potentially globalized effect
Proportionality in Discovery: A Cautionary Tale
Get PDFThere has been widespread criticism of the abuse of discovery. \u27 That statement comes not from a recent edition of the Defense Research Institute newsletter but from the Advisory Committee notes to the 1980 amendment that gave us the Rule 26(f) conference. Discovery abuse and the increase in the cost of litigation that flows from such abuse has been a constant theme emerging from analysis of the civil justice system
How Are Companies Positioning to Deal with E-Discovery in the Event of Further Litigation
No full textOverview of Metadata in E-Discovery and Ethical Considerations Related to Mining and Scrubbing
No full textHolding the High Ground: The Operational Calculus of Torture and Coercive Interrogation
Get PDFIn Part I of this Article, we first consider some of the strengths and weaknesses of the partially adequate objections. In Part II, we explore torture in light of the biological distinction between pain and suffering and consider the implications of that distinction for our understanding of free will and the fighting spirit. Finally, in Part III, we suggest a more fundamental view of torture that navigates between the Scylla of naive moralizing and the Charybdis of ticking time-bombs. We propose that the debate should focus on torture\u27s effect on our country\u27s moral certainty, on the fighting spirit of our armed forces, and on our overall strategy in combating asymmetric foes and jihadist extremism. This notion of torture will cast an important part of the discussion in sharper relief while providing a clearer norm for those who make and execute policy to defend our nation from terrorism
How States Can Protect Their Policies in Federal Class Actions
Get PDFThe role of the states in our constitutional system is to protect their citizens and supply tort liability. Where federal law does not preempt state systems of liability, state law supplies the tort- and contract-based rules that govern the vast majority of the relationships in our society and economy. Some think that national rules of liability, or new national choice-of-law rules, should supplant today\u27s state-by-state regulation. But until Congress enacts a comprehensive regulatory scheme, state law will control the causes of action that plaintiffs can bring. And the state law that controls the cause should control the way that the cause is adjudicated - at least insofar as the method of adjudication affects the substance of the right
Theoretical Tension and Doctrinal Discord: Analyzing Development Impact Fees as Takings
Get PDFOne of the lingering questions about the law of regulatory takings concerns the proper scope and application of the Supreme Court’s exactions jurisprudence, known as the Nollan/Dolan test. A recurring issue in the case law, and of particular importance to this article, is the extent to which the Nollan/Dolan framework applies to takings challenges brought against development impact fees.
By and large, the decisions on the issue split over two primary questions. First, there is a debate about whether Nollan/Dolan is limited to physical exactions or whether the test might also apply to monetary exactions as well. Second, there is a difference of opinion over whether Nollan/Dolan applies only to exactions imposed in an ad hoc, adjudicative manner or also to those that are more broadly-applicable and established legislatively. These questions are important, but the primary emphasis on them has diminished other issues that also require attention. Particularly, there is a need to situate impact fees within the law of local government financing – i.e., determining whether they operate as fees or taxes – which will have some bearing on the proper level of Takings Clause scrutiny to which they should be subjected. Only after wrestling with all of these issues, can one move to the ultimate query of what analytical test is most appropriate.
This article attempts to answer these questions, fit impact fees into the Court’s current takings jurisprudence, propose a new rule of decision for impact fee cases, and demonstrate how that rule might apply to basic factual situations. In short, I demonstrate that impact fees are hybrid animals that occupy a space at the theoretical and doctrinal crossroads of takings jurisprudence, property law, and the rules applicable to municipal finance. Second, in light of this hybrid quality, I propose that takings challenges to impact fees be analyzed under a hybrid framework that combines elements of Nollan/Dolan with the more flexible factor-balancing reserved for the majority of takings cases. Finally, I suggest several larger questions implicated by the impact fee problem that continue to require judicial and scholarly attention
