Recently added articles from The Review of Litigation:
Twombly: The Demise of Notice Pleading, the Triumph of Milton Handler, and the Uncertain Future of Private Antitrust Enforcement
Oct 01, 2008; ... I. INTRODUCTION In a 7-2 decision, the Supreme Court in Bell Atlantic Corp. v. Twombly reversed the Second Circuit and held that a complaint that alleged mere parallel behavior among rival telecommunications companies, coupled with stray statements of agreement that amounted to legal ...
The Enigma of Standing Doctrine in Texas Courts
Oct 01, 2008; ... I. INTRODUCTION As a general rule, Texas law traditionally has required a claimant to possess a common law or a statutory right of action, or in public rights cases, to have a personal interest in die enforcement of the public right distinct from and more palpable than me general ...
Rigorous Analysis of the Class Certification Expert: The Roles of Daubert and the Defendant's Proof
Oct 01, 2008; ... I. INTRODUCTION A lawsuit may not be certified as a class action unless the named plaintiff shows that the central facts of the case will be proved on a class-wide basis.1 The named plaintiff often attempts to meet this burden through an expert witness, who opines that the case's ...
Changing With the Times: How the Government Must Adapt to Prevent the Publication of Its Secrets
Oct 01, 2008; ... I. INTRODUCTION On Friday, February 15, 2008, a district court judge in San Francisco ordered Dynadot, an Internet Service Provider (ISP), to shut down a website it was hosting, http://wikileaks.org (Wikileaks).1 Wikileaks encourages everyday Internet users to post secret documents ...
Patent Claim Construction: A Sliding-Scale Standard of Review
Oct 01, 2008; ... I. INTRODUCTION In patent suits, a determination of patent infringement consists of two steps.1 First, the court must determine the scope of the patent claims; second, it must compare the properly construed claims to die allegedly infringing device. Construction of the patent claims ...
The Curious Appellate Judge: Ethical Limits on Independent Research
Oct 01, 2008; ... I. INTRODUCTION A. Temptation Appellate judges in the twenty-first century find themselves in a world where litigation - both civil and criminal - involves a vast array of complex and technical factual disputes. These lawsuits, in turn, may cause judges to seek a greater level of ...
Repercussions and Recourse for Specially Designated Terrorist Organizations Acquitted of Materially Supporting Terrorism
Oct 01, 2008; ... I. INTRODUCTION On October 22, 2007, U.S. District Judge A. Joe Fish declared a mistrial in what had been labeled one of the most important terrorist financing cases the United States had brought since the attacks of September 11, 2001. The charges stemmed from allegations that the Holy ...
Wide Scope of Liability for Intentional Tortfeasors: A Doctrinal Rationale Applied to Alien Tort Statute Defendants
Jul 01, 2008; ... I. Introduction "Scope of liability" is the term used by the Draft of the Restatement (Third) of Torts for the subject traditionally known, among other names, as the tort element of proximate cause, which consists of limitations on liability even when the other tort elements have been ...
When the Bell Can't Be Unrung: Document Leaks and Protective Orders in Mass Tort Litigation
Jul 01, 2008; ... Protective orders are commonplace in civil litigation, with trade secrets, privileged communications, and the like protected from public disclosure. In most cases, the protective orders are individualized and discrete, with each document evaluated separately. In mass torts, protective ...
An Empirical Study of Amici Curiae in Federal Court: A Fine Balance of Access, Efficiency, and Adversarialism
Jul 01, 2008; ... I. INTRODUCTION It has long been accepted procedure for courts to allow interested non-parties such as amici curiae to influence judicial decisionmaking by offering legal and factual insights that are relevant to the issues in a case but are not found in the trial or appellate record ...
The Need and Means to Restrict Spectators From Wearing Buttons at Criminal Trials
Jul 01, 2008; ... I. INTRODUCTION In recent years, spectators have begun to wear buttons during criminal trials. These buttons usually display the image of the crime victim.1 Victims' rights supporters argue that such a practice merely supports the memory of the victim.2 Advocates of the criminally ...
Voices of the Victims: Capital Punishment and A Declaration of Life
Jul 01, 2008; ... It's late Saturday night. Another execution is scheduled for next week, and the machinery of death is humming through my fax. And, despite the qualms, despite the queasiness I still feel every time an execution is carried out in my jurisdiction, I tinker away. I do it because I have taken an ...
The Pharmacist's Duty to Warn in Texas Reconsidered Within a National Framework*
Jul 01, 2008; ... I. INTRODUCTION: PHARMACY'S CONTEMPORARY PRACTICE PARADIGM AND THE COURTS Within the time span of the last twenty years, more or less, the practice of pharmacy has changed in dramatic ways. While at one time pharmacists were exclusively drug-oriented and focused on accurately filling ...
Taking the Detour Around Defending Protected Activity: How Burlington Northern & Santa Fe Railway Co. v. White Unnecessarily Complicates Litigation of Retaliation Claims
Apr 01, 2008; ... I. INTRODUCTION Title VII of the Civil Rights Act of 1964 has several provisions under which employees and applicants for employment may sue employers for allegedly unlawful employment practices.1 Section 703, sometimes referred to as Title VIF s "antidiscrimination provision,"2 provides ...
The Triumph of Equity: Equitable Estoppel in Modern Litigation*
Apr 01, 2008; ... "Laws covet to be ruled by Equity."1 I. INTRODUCTION When the law is against you, defense counsel should consider equity. Proof of equitable estoppel may prompt a dismissal by licensing a litigation strategy based on the inconsistent conduct of the party ...
Reviving Lenity: Prosecutorial Use of the Rule of Lenity as an Alternative to Limitations on Judicial Use
Apr 01, 2008; ... I. INTRODUCTION Who is the most powerful figure in the United States? While the possible answers may vary, even one as mighty as a Supreme Court Justice recognized that the most powerful person in America is the prosecutor.1 To mitigate the expansive power that adheres to the position, ...
Vacating Arbitration Awards for Mistakes of Fact
Apr 01, 2008; ... I. INTRODUCTION Arbitration awards are generally understood to be final. Nevertheless, national legislatures and international decisionmakers have seen the need to limit the finality of arbitration awards under certain circumstances. Generally, a defeated party to an arbitration award ...
Trying to Touch the Untouchables: The Challenges Faced by Texas Plaintiffs Asserting Failure-to-Protect Suits Against Police Departments
Apr 01, 2008; ... I. INTRODUCTION The immunity of police departments and police officers in Texas overly protects these agents against legitimate failure-to-protect suits. A combination of sovereign immunity, qualified immunity, and the public duty doctrine makes bringing a suit against police for ...
Asbestos Lessons: The Consequences of Asbestos Litigation
Jul 01, 2007; ... Personal injury claims arising from the use of asbestos have been a disaster for many in addition to those who were harmed by exposure to that product. A lesson to be learned from the experience is that disasters of such a scale and such complex causes have radiating consequences that neither ...
Who Does the First Amendment Protect?: Why the Plaintiff Should Bear the Burden of Proof in Any Defamation Action
Jul 01, 2007; ... I. INTRODUCTION Traditionally, in an action for defamation1 common law has dictated that the defendant has the burden of proving, as an affirmative defense, the truth of the defamatory communication.2 The Supreme Court of the United States, however, when dealing with a public plaintiff ...