1,720,972 research outputs found
What\u27s Coming for Class Actions,
Full text linkA trio of cases before the Supreme Court in its current term has the potential to dramatically impact the ability of plaintiffs to bring class actions. By taking up Tyson Foods v. Bouaphakeo, Spokeo v. Robins, and Campbell-Ewald v. Gomez, the Court could be signaling that a shift against class actions is underway which could have significant consequences for plaintiffs seeking class certification.
Recently, in Wal-Mart v. Dukes, Comcast v. Behrend, and AT&T Mobility v. Concepcion, the Court handed down decisions that increased the burden on plaintiffs\u27 attorneys to show issues and damages common to all plaintiffs in the proposed class, thereby making class certification increasingly challenging for plaintiffs. If the Court continues its trend, the current trio of cases may further increase the challenges associated with bringing a successful class action
What\u27s Coming for Class Actions,
Full text linkA trio of cases before the Supreme Court in its current term has the potential to dramatically impact the ability of plaintiffs to bring class actions. By taking up Tyson Foods v. Bouaphakeo, Spokeo v. Robins, and Campbell-Ewald v. Gomez, the Court could be signaling that a shift against class actions is underway which could have significant consequences for plaintiffs seeking class certification.
Recently, in Wal-Mart v. Dukes, Comcast v. Behrend, and AT&T Mobility v. Concepcion, the Court handed down decisions that increased the burden on plaintiffs\u27 attorneys to show issues and damages common to all plaintiffs in the proposed class, thereby making class certification increasingly challenging for plaintiffs. If the Court continues its trend, the current trio of cases may further increase the challenges associated with bringing a successful class action
Going Beyond Counting First Authors in Author Co-citation Analysis
Full text linkThe present study examines one of the fundamental aspects of author co-citation analysis (ACA) - the way co-citation
counts are defined. Co-citation counting provides the data on which all subsequent statistical analyses and mappings
are based, and we compare ACA results based on two different types of co-citation counting - the traditional type that
only counts the first one among a cited work's authors on the one hand and a non-traditional type that takes into
account the first 5 authors of a cited work on the other hand. Results indicate that the picture produced through this non-traditional author co-citation counting contains more coherent author groups and is therefore considerably clearer. However, this picture represents fewer specialties in the research field being studied than that produced through the traditional first-author co-citation counting when the same number of top-ranked authors is selected and analyzed. Reasons for these effects are discussed
Terrible Touhy: Navigating Judicial Review of an Agency\u27s Response to Third-Party Subpoenas
Full text linkThe question of judicial review of a federal agency\u27s response to a third-party subpoena is highly litigated and yet barely addressed in academic literature. For seventy years, this issue has been governed by the Supreme Court\u27s holding in United States ex rel. Touhy v. Ragen, a case that spawned its own vocabulary, its own legal doctrine, and its own circuit split. The confusion has left four circuit courts entrenched, the remainder waffling, and the district courts largely on their own to sort out a workable standard.
This Article establishes that the circuit courts\u27 approaches to judicial review of an agency\u27s noncompliance with a subpoena are largely divided over the academic question of sovereign immunity. For the Fourth and Eleventh Circuits, only the Administrative Procedure Act (APA) provides the necessary waiver of sovereign immunity that allows a court to review agency action; accordingly, review of an agency\u27s failure to comply with a subpoena is analyzed under the APA\u27s “arbitrary and capricious” standard. For the Ninth and D.C. Circuits, the federal courts have broad, implicit power over discovery, and Federal Rule of Civil Procedure 45 is applied as it would be in all other cases. This Article seeks to reconcile these competing lines of authority by proposing that the APA\u27s waiver of sovereign immunity still applies when an agency runs afoul of discovery standards contained in Federal Rule 45.
This Article attempts to reunite the circuits because district court case law shows that confusion over the appropriate standard is a distinction without a difference. For lower courts and litigants attempting to navigate the circuit split, it is worth knowing that the question largely comes down to the impact third-party subpoenas have on agency time, money, and statutory mission. By framing judicial review accordingly, consistent results can be achieved, despite the geographic location of the court
Collateral Damage: Protecting Cultural Heritage in Crimea and Eastern Ukraine
Full text linkSince the early spring of 2014, the world has watched Russia utilize military forces to invade and annex territory belonging to Ukraine. These actions are, unsurprisingly, raising concerns in Eastern Europe over the prospect of armed conflict in the region, the political consequences of Russian annexation of Ukrainian territory, and the effect of this conflict on ordinary civilians. But there is another potential cost associated with Russia\u27s actions that should not be overlooked - the loss of Ukrainian cultural heritage. History is replete with examples of the destruction of cultural heritage during periods of instability, from Napoleon\u27s systematic looting of Egypt to the state-sanctioned pillage and burning of museums in Kuwait by Iraq during the Persian Gulf War.1 The question now is whether that destiny is inevitable for Ukraine\u27s unique cultural resources, or whether such collateral damage can be prevented
Machine Learning and the New Civil Procedure
Full text linkThere is an increasing emphasis in the legal academy, the media, and the popular consciousness on how artificial intelligence and machine learning will change the foundations of legal practice. In concert with these discussions, a critical question needs to be explored—As computer programming learns to adjust itself without explicit human involvement, does machine learning impact the procedural practice of law? Civil procedure, while sensitive to technology, has been slow to adapt to change. As such, this Article will explore the impact that machine learning will have on procedural jurisprudence in two significant areas—service of process and personal jurisdiction. The Article will begin by assessing the impact that technological developments have had on these two foundational procedural doctrines, from interstate transportation and communication, to computers and the internet, and to the newest era of Web 2.0 and social media platforms. The Article will then explore machine learning and its current applications. Many of these applications involve increased human interaction conducted by intelligent programs that have the potential to result in causes of action independent of explicit human programming. Next, the Article will proceed to examine the impact machine learning will have on jurisdiction and service of process in the federal courts. Specifically, the Article finds that these procedural doctrines will need to be adjusted to recognize that the major concepts about targeting and purposeful availment will be fundamentally altered by machine learning. Service of process will need to adjust as machine learning makes it easier to serve defendants through the use of search algorithms, changing what it means for notice to be reasonably calculated to reach the defendant. On the personal jurisdiction side of the house, machine learning topples concepts of purposeful availment by allowing programs to initiate behaviors that result in causes of action in new fora without human or corporate involvement, thus suggesting a universal standard of personal jurisdiction might be necessary. Regardless, it seems clear that the slow-changing tides of procedure may need to fast track their progress as technology becomes more independent and more unpredictable than ever before
King Tut and Tahrir Square: The Egyptian Revolution of 2011 and the Advantage of Viewing Cultural Heritage Destruction through a Right to Culture Lens
Full text linkDaimler and the Jurisdictional Triskelion
Full text linkTwice in the past three years, in Goodyear Dunlop Tires Operations, S.A. v. Brown and Daimler AG v. Bauman, the Supreme Court articulated a new landscape of general personal jurisdiction; namely, exercises of dispute-blind jurisdiction will be based on a determination of whether a corporation is at home in the jurisdiction, not on whether the corporation had continuous and systematic contacts in the forum state. The Court\u27s test was further explained in terms of three different fora: where the corporation is incorporated, where it maintains its principal place of business, and where there are unique circumstances suggesting that the corporation is truly at home. Unfortunately, the Court failed to articulate an underlying policy that bound together the three bases of general jurisdiction, and it refused to clarify what types of unique situations might give rise to general personal jurisdiction outside the state of incorporation and principal place of business. Thus, although a new test was articulated, its boundaries and theoretical foundations remain woefully unclear.
This Article seeks to elucidate general jurisdiction\u27s new normal by exploring the jurisdictional triskelion-three interconnected bases of general jurisdiction united by a core underlying policy. While the state of incorporation and principal place of business form the first two bases, this Article suggests that the third basis, now designated only as unique circumstances, should be defined by fora in which the corporation maintains (1) a physical office, (2) employees, and (3) corporate decision makers or executives. These considerations have long appeared in the Court\u27s jurisprudence on general jurisdiction and have the added benefit of being easy to ascertain without significant resource expenditure. Further, defining the third basis in this way lends clarity to the purpose and policy of general jurisdiction. While the Court has never addressed what policy supports the exercise of general jurisdiction, the Daimler Court noted that principles of general jurisdiction stem from traditional conceptions of jurisdictional power. Since pre-International Shoe personal jurisdiction was rooted in the link between sovereign states and their citizens, the three modern bases of general jurisdiction must now emanate from state citizenship.
This Article suggests that a corporation should be considered a citizen in fora that help it further its own corporate existence and overarching directives. The state of incorporation, the principal place of business, and fora, where there is an office, employees, and executives in the state, all illustrate this policy-they all promote the corporation\u27s direction and control of its own existence. Accordingly, all three bases are paradigmatic of general jurisdiction and emanate from a core policy rooted in state sovereignty. Re-conceptualizing general jurisdiction in this way not only clarifies the at home standard adopted in Daimler, but clearly establishes the situations in which an exercise of dispute-blind jurisdiction will comport with due process standards
Seismic Shifts: Post-COVID Legal Education and the Profession
Full text linkThe 2020-2021 COVID-19 pandemic created significant upheaval in the legal profession. Courts closed, cases were delayed, and law firms and other legal institutions rapidly moved their employees and operations to a virtual forum. And among this disruption, law schools made unprecedented changes to their curricula and pedagogy as students attended classes over Zoom, through asynchronous means, or in a hybrid fashion that split their learning between in-person and online. These rapid developments have sparked new discussions regarding the future of legal education. Specifically, law schools and the American Bar Association (ABA) are now re-examining their approach to determine the appropriate balance between in-person and remote learning and what best practices should be used in a remote law school classroom. This examination has revealed a deeper interest in online learning in general, with a number of law schools seeking to provide entirely online or hybrid J.D. programs in the post-pandemic world.
This article examines the history of seismic shifts in legal education, including the adoption of the case recitation method of learning, the adoption of clinical and practical training, and, finally, the shift towards increased online education. The Article begins by examining earlier disruptions in legal education, specifically the abandonment of the apprenticeship model of learning in favor of case recitation, and then the much-needed adoption of practical training in law schools. Each of these earlier shifts were preceded by similar crisis moments in society-for example, the war on poverty and the creation of federal funding for law schools to step in and provide low cost and pro bono representation for clients without access to traditional legal services. The Article examines these earlier shifts and the crises that created them, their impact on curricular practices, and how they compare to the impact of COVID-19 on the approach to legal education. Specifically, the Article determines that, like earlier shifts, the shift in legal education as a result of COVID-19 is the result of both internal pressure within law schools and external changing forces that mandate a new approach, including adapting to remote work and remote court proceedings.
The Article then examines online legal education, tracing the development of pedagogical approaches and their inspiration from other disciplines. Remote learning in law schools has roots deeper than the era of Zoom, with recorded lectures and other distance educational tools having been in operation for decades. However, new pedagogical approaches developed during the COVID-19-era focus on gamification of content, the use of remote lectures, and the importance of assessment and community-building in remote classrooms. Finally, the Article concludes that major shifts in legal education have largely been productive for students and the profession, with COVID-19 ushering in a new era that is more focused on student flexibility and changed practice realities
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