Recent Litigation Research Articles

The Mysterious Market for Post-Settlement Litigant Finance

Litigant finance is a growing and increasingly controversial industry in which financial firms advance a plaintiff money in exchange for ownership rights in the proceeds of the legal claim on a nonrecourse basis: A plaintiff must repay the advance only if compensation is ultimately received for the legal claim. The nonrecourse nature of this funding exempts it from most states’ consumer credit laws, enabling funders to charge higher interest and fees than would otherwise be permitted. When this funding involves ordinary consumers, critics of the industry contend that the uncapped interest rates exploit vulnerable litigants, while its defenders argue that the availability of these cash advances improves the welfare of consumers, especially those who have no other credit options. This funding made headlines during the recent NFL concussion litigation, with more than one thousand players reported to have received such cash advances and with class counsel raising concerns of “predatory lending.” Because the industry has not been forthcoming with facts, the larger policy debate thus far has largely relied on anecdotes and speculation. In addition, the debate has ignored the important differences between pre- and post-settlement litigant funding. This Article is the first to present systematic, large-scale data on post-settlement litigant funding—the type of funding most NFL players reportedly received. We were given unrestricted access to the complete archive of sixteen years of funding applications and funding contracts from one of the largest consumer litigant funding companies in the United States. These data, which are robust and representative, enable us to make transparent the terms and true price to consumers of this formerly mysterious funding. We find that the Funder offers not only clearer contract terms but also better financial terms to post-settlement clients relative to pre-settlement clients. Yet these better terms do not come close to reflecting the virtually nonexistent litigation risk to the Funder. We therefore recommend that post-settlement litigant funding be subject to the same regulations as conventional consumer credit and that a standardized, simple disclosure be required.

Client-Intermediary Relations in the Crypto-Asset World

In a world where financially valuable assets are increasingly being stored in digital form, questions arise as to the legal categorisation of such assets. The question of whether crypto-assets can constitute property has been the subject of some recent litigation and thus legal analysis. If the answer to such question is in the affirmative, as the recent Cryptopia case suggests, this raises a plethora of further questions that need to be resolved by the courts before investors, regulators and accountants alike can approach digital assets with a sufficient degree of legal certainty. One such question, on which this paper focuses, concerns the relationship between a crypto-asset intermediary (such as a crypto-asset stock exchange or custodian), and its clients that store crypto-currencies or crypto-securities (‘clients’). This question is of practical importance because the vast majority of crypto-assets are kept by intermediaries, yet we simply do not know with any reasonable certainty the basis on which these assets are being held. Most agreements between clients and intermediaries are extremely vague, and are silent as to the legal relationship between the parties. Yet, since common law courts will have to determine the legal category into which the agreement falls, they should be guided by a consistent set of principles that allow them to characterise agreements with a degree of certainty and practical justice that is acceptable to commercial parties. This is essential for the determination of clients’ entitlements on the intermediary’s insolvency, a question of high public policy importance which has arisen frequently in recent litigation. In addition, as crypto-assets are (at least at present) not subject to extensive regulation, intermediaries of such assets will not be constrained by many regulatory requirements in relation to investor protection. The determination of the precise legal relationship between the parties, therefore, becomes of even greater public policy importance. This paper addresses the situation where the applicable law to the question of the proprietary characterisation of the client-intermediary relationship is the common law. This paper argues that the most likely (default) relationship between a crypto-asset intermediary and a client is one of trustee and beneficiary, although there are also other possible legal characterisations, namely outright title transfer, ‘quasi-bailment’, and mere obligations sounding in contract. Ultimately, in a particular case, the legal characterisation of the relationship, as well as the precise obligations undertaken by the intermediary, will depend on the client-intermediary agreement itself. In many cases it is difficult to determine whether a particular client-intermediary agreement gives rise to one type of legal relationship or another, but all turns on the interpretation of the agreement in accordance with settled principles of construction and characterisation. Furthermore, it is uncertain whether the law will develop in a way such that bailment analysis will be accepted in the context of crypto-assets, for the objections relating to possession, transmission and (possibly) exclusivity would need to be surmounted before the concept can be applied. In the final analysis, it is concluded that the most likely type of legal relationship that would appear in practice is the trust, because this accords with the objective intention of the parties who wish to have commercial certainty, and (possibly) wish to comply with the relevant regulatory requirements within the particular jurisdiction in question.

Occupational Licensing in Digital Markets

This chapter proceeds as follows. Section I begins with the background and recent history of the state action doctrine and its relation to occupational licensure, addressing the recent cases listed above. Section II discusses recent and current litigation involving competitors using the ‘Brother, May I?’ approach to prevent new technology in the digital economy from entering the market. Section III argues that the FTC’s targeted efforts in North Carolina Dental and Teladoc should extend to current issues in the digital economy by narrowing the use of occupational licensure for health services to regulations that actually protect health and safety. Section IV discusses the Commerce Clause implications caused by occupational licensure on new technology in the digital economy. Section V concludes this chapter.

From the Transatlantic Slave Trade to Contemporary Ethnoracial Law in Multicultural Ecuador

In this article I examine the unfolding—within and beyond a court of law—of two relatively recent litigations initiated by Afrodescendants, in which two different antidiscrimination legal instruments provided the grounding for the cases’ “resolutions.” The argument suggests that contemporary ethnoracial legal instruments have failed to interrupt the reproduction of structural racism, or of what Tanya Hernández has called “race regulation customary law.” One of the lessons of this essay is certainly to point to anti-Black racism’s resilience, as it transforms itself as needed to better survive in also changing sociopolitical configurations. The essay uncovers the continuing operations of the Ecuadorian racial order in the very spaces and situations—the courtrooms of the justice system and beyond—where it is supposed to be combated, frontally. It reveals the inadequacy of contemporary antidiscrimination legal instruments to deal more holistically with the many facets of the situation and impacts of anti-Black racism and race regulation customary law on Afrodescendants’ affects and emotions, and the making and remaking of their precarity.

Broadcast Regulation and the Irrelevant Logic of Strict Scrutiny

This Article focuses on traditional FCC regulation of the content of broadcast entertainment television. Recent litigation involving Fox Television and other broadcasters has raised a number of constitutional issues. This Article, however, makes a fundamental and largely practical point: the basic assumptions underlying traditional FCC regulatory policies have been rendered technologically obsolete. The Article simply assumes, for the sake of argument, that the basic FCC policies are in some respects constitutionally sound. In particular, the Article assumes that the federal government has a sufficient interest in regulating the broadcast entertainment material to which children and young adults are exposed, and in supporting parents’ efforts to control their child’s exposure to such material. The crucial constitutional problem, though, is that the FCC must show that its regulations sufficiently advance the cited interests. This, it turns out, the FCC can no longer do, in light of recent widespread technological developments. Realistically, children and young adults now have convenient alternative forms of access to the sorts of content the FCC continues to seek to regulate. Typically, alternative access can be gained through time-shifted viewing, or through an increasing variety of mainly Internet-based alternatives to real-time television broadcasting received on a TV set. Typical FCC regulations thus now burden broadcaster speech without adequately promoting any sufficient government interest, and are thus in at least this respect unconstitutional.

Embracing Crimmigration to Curtail Immigration Detention

Immigration advocates have long objected to both the constitutionality and the conditions of immigration detention. However, legal challenges to the practice have been largely unsuccessful due to immigration law’s “exceptionality.” Placing recent litigation carried out against immigration detention in the midst of the COVID-19 pandemic within the context of the judiciary’s approach to immigration, I argue that litigation is an extremely limited strategic avenue to curtail the use of immigration detention. I then argue that anti-immigration detention advocates should attempt to incorporate their agenda into criminal legal reform and decarceration efforts. This is important for both movements. Normatively, immigration detention raises comparable concerns: Namely, that jailing people is, on the one hand an extreme and cost-ineffective form of social control, and on the other, a tool to marginalize or “otherize” entire communities. Furthermore, there is evidence that ongoing efforts to decarcerate states and localities may be foiled by immigration detention. To the extent, therefore, that decarceration is based on commitments to freedom or condemnation of the extensive use of carceral institutions, they are incomplete and even dangerous without including measures to address immigration detention. Immigration advocates, on the other hand, are more likely to succeed by placing the anti-immigration detention agenda within the scope of larger criminal legal reform than by pursuing either immigration detention reform or anti-detention litigation.

A Proposal for Group Licensing of College Athlete NILs

Recent litigation has clarified rules governing the right to publicity and in some cases has expanded opportunities for NCAA college athletes to commercialize their NILs. Those opportunities will likely increase as state and federal legislation allows compensation for NIL-related activities. Drawing from the experience of patent pools and performing rights organizations, this article discusses the economic efficiencies of group licensing and advances a proposal for future licensing of college athlete NILs. A group licensing entity for NILs would serve the dual purposes of enabling college athlete compensation for NIL-related activities while complying with NCAA rules related to competition in college athletics. The NIL licensing entity would be created by Congress as a non- profit, quasi-governmental membership organization operating on behalf of college athletes and perform many pro-competitive functions.

The Ironies of the New Religious Liberty Litigation

The plaintiffs in recent religious liberty litigation are very different from plaintiffs in earlier cases. They are not marginalized or politically powerless. They seek to return the country to its conservative roots, rather than to escape the dominant liberal mindset. But their success has come at a cost to their own deep commitments. This essay will proceed as follows. First, I describe key elements of recent religious liberty cases, highlighting the ways in which they go beyond the older case law that ostensibly served as precedent. Second, I argue that these decisions ironically fall prey to the communitarian critiques of modern liberal democracy that have been prominent in conservative religious circles for thirty years or more. Finally, I sketch a new way forward, drawing on the notion of civic friendship and the Golden Rule, and suggest the question religious believers should be asking now is not “What are our legal rights?” but “What do we owe morally to fellow citizens who believe differently than we do?”

Malpractice Allegations Against Vascular Surgeons: Prevalence, Risk Factors, and Impact on Surgeon Wellness

The contemporary medicolegal environment has been linked to procedure overuse, health care variation, and higher costs. For physicians accused of malpractice, there is also a personal toll. The objective of this study was to evaluate the prevalence of and risk factors for involvement in medical malpractice lawsuits among U.S. vascular surgeons and to examine the association of these allegations with surgeon wellness. In 2018, the Society for Vascular Surgery Wellness Task Force conducted an anonymous survey of active members using a validated burnout assessment (Maslach Burnout Index) embedded into a questionnaire. This survey included questions related to medical errors and malpractice litigation. Demographic, personal, and practice-related characteristics were assessed in respondents who reported malpractice allegations in the preceding 2 years, then compared with those without recent medicolegal litigation. Risk factors for malpractice allegations were identified (χ2 and Kruskal-Wallis tests), and the association between malpractice allegations and wellness was examined. Multivariate logistic regression models were developed to identify independent risk factors for malpractice accusations. Of 2905 active Society for Vascular Surgery members, responses from 871 practicing vascular surgeons were analyzed. Of these, 161 (18.5%) were named in a malpractice lawsuit within 2 years. The nature of malpractice claims included procedural errors (23.1%), failure to treat (18.8%), and error/delay in diagnosis (16.9%); 20% of claims were dismissed and 19% were settled before trial. Defendant vascular surgeons reported a “fair” resolution in 25.4% of closed cases. Malpractice allegations were significantly associated with surgeon burnout (odds ratio, 1.78 [1.01-2.15]; P = .041) but not with self-reported depression or suicidal ideation. By unadjusted analysis, factors significantly associated with recent malpractice claims included male sex, age, years in practice, and greater call frequency. Multivariate analysis revealed independent variables associated with malpractice allegations, including on-call frequency (P = .0178), recent medical errors (P = .0189), and male surgeons (P = .045; Table). Malpractice allegations are common for vascular surgeons. Nearly 20% of survey respondents have been named in a lawsuit within the preceding 2 years. Male surgeons and those with greater call frequency were at increased risk of lawsuit involvement. Moreover, surgeons facing litigation were more likely to report a major medical error within the preceding 3 months, suggesting an “error-prone” self-perception. The association between malpractice allegations and surgeon burnout further demonstrates the emotional impact of a malpractice suit. These findings underscore the need for initiatives to provide counseling and peer support for vascular surgeons facing litigation.TableMultivariate regression analysis of risk factors for malpractice allegationsVariableOdds ratio (95% CI)P valueNights per week on call (Per 1 night)1.13 (1.02, 1.24)0.0178Years of practice (Per 1 year)1.02 (1.00, 1.03)0.0157Gender (Female)0.55 (0.31, 0.99)0.0452Medical error in last 3 months (Yes)1.89 (1.11, 3.21)0.0189Work/home conflict resolution (In favor of work)0.74 (0.50, 1.09)0.1258Electronic Medical Record (EMR) dissatisfaction1.28 (0.84, 1.96)0.2536 Open table in a new tab

Invitation to trusteeship rather than treat? Higher Education, human rights and student litigation: A response to Fulford (2020)

AbstractThis article argues that, as tutors, we are bound not only by the rules of contract law (i.e., to avoid breaching the terms of that which was agreed to), but also by our duty of care, and the principles of human rights law that protect the right to education. We must strive to avoid negligent acts and any potentially harmful practices or policies. Looking to recent litigation, we are bound also to provide useful, meaningful guidance on how learners might best achieve—and subsequently evidence—high levels of intellectual attainment and wider ‘learning gains.’. The concepts of fairness and equitable treatment are key, especially where universities have agreed to widen access and improve opportunities. With the protection of vulnerable learners increasingly leaning towards the provisions—and promises—of human rights law, a sort of estoppel‐led ‘trusteeship’ (over shared knowledge and learning processes) can perhaps also be inferred.

Implied Representations in Derivative Transactions after Property Alliance Group Ltd v The Royal Bank of Scotland Plc

The London Interbank Offered Rate (LIBOR), the most important figure in finance underpinning USD350 trillion-worth of financial products, and other benchmark rates were manipulated between January 2006 and March 2012 by leading international banks. Recent litigation concerning LIBOR-referenced transactions, which were concluded during this period of benchmark rate manipulation, has opened the door to implied misrepresentation claims against banks involved in the manipulation. This essay outlines and critically analyses the decisions of the English Court of Appeal in Property Alliance Group Ltd v The Royal Bank of Scotland Plc and the English High Court in Marme Inversiones 2007 SL v Natwest Markets Plc in order to construct a framework for bringing an implied misrepresentation claim in the context of benchmark rate manipulation under English law. While these decisions demonstrated that the courts are willing to imply a representation from a bank that it had not manipulated a benchmark rate, both decisions considerably limited the scope of such a representation with the effect that the falsity of the representation is difficult to prove. This essay also examines the impact of the developments in the English law on New Zealand, arguing that, although the law of misrepresentation has been largely reformed, the New Zealand courts are likely to look to the English law if a similar case arises before them.

Challenges to Australia's Offshore Detention Regime and the Limits of Strategic Tort Litigation

AbstractAustralia's offshore detention regime has been the subject of numerous attempts to seek accountability for harm caused to detainees using legal and other avenues in Australia. This Article examines recent strategic litigation actions against the Australian government and the corporate contractors engaged in offshore detention, including: Kamasaee v. Commonwealth; AUB19 v. Commonwealth; and actions seeking injunctions requiring the Australian government to airlift detainees to Australia for medical treatment. While these actions have vindicated the rights of those in offshore detention in specific ways, and in some instances facilitated compensation for harms caused while in detention, none have proved capable of challenging the underlying basis of the offshore detention regime, nor of providing a foreseeable end to the detention, whether by facilitating credible prospects for resettlement, or by other means. The Article provides an account of the achievements and limitations of these claims and concludes that although certain features of the Australian jurisdiction make it possible to pursue transnational claims, and thus potentially provide remedy for those who have suffered wrongs in Australia's offshore detention regime, such claims need to be pursued with the utmost care and with careful consideration of the complexities of the Australian political and legal environment.

Stream habitat provided by large wood at risk under drainage law

AbstractWatershed management efforts in agriculturally dominated landscapes of North America face nearly two centuries of laws and policies that encouraged habitat destruction. Although streams and wetlands in these landscapes are actively being restored using designs that incorporate science and engineering, watershed drainage laws can constrain action or impact passively restored or naturalized habitat. In general, drainage laws require removal of any riparian vegetation or wood deemed to obstruct flow in streams regulated as drains. We use a case study from Indiana (USA) to introduce the shortcomings of drainage laws for allowing large wood, which is an important habitat feature, to remain in stream ecosystems. Removals of large wood from monitored stream reaches in a regulated drain were associated with subsequent declines in fish biomass. Such legal activities represent an important environmental management problem that exists under drainage laws which apply to streams over a widespread geographic region of North America. Recent litigation in Wisconsin (USA) suggests that if state legislatures fail to update these antiquated laws, the courts may act in favour of science‐based management of drains. The statutes and regulations that govern agricultural drainage warrant careful consideration if streams within drainage districts are to be managed to improve ecological function. © 2020 John Wiley & Sons, Ltd.

A Problem Old as Pong: Video Game Cloning and the Proper Bounds of Video Game Copyrights

From the earliest days of video games, unscrupulous copycats ripped off the games of others, and the courts struggled to define the boundaries of copyright law as pertains to video games. As technology advances, small independent games are on the rise again, but so are copycats. Courts have had about 30 years to apply the body of copyright law to the medium of video games. However, recent litigation, especially Tetris Holding, LLC v. Xio Interactive, Inc., has sought to jettison some important aspects of copyright law as applied to game-play mechanics. This article analyzes the history of the idea/expression dichotomy as applied to video games and suggests ways that future courts can better draw the boundaries of copyright protection.

Can statelessness be legally productive? The struggle for the rights of noncitizens in Russia

ABSTRACTNearly 30 years since the collapse of the Soviet bloc, there are still people who have never in their lives held any passport other than that of the Soviet Union. They are de jure stateless. However, their statelessness can also be legally productive if strategically challenged. This legal productivity arises from the mobilization of human rights protections embedded in de jure statelessness by local legal actors in a given, national immigration context, and extending them to secure the rights of de facto stateless: undocumented migrants and asylum seekers. I illustrate this using a case study of the recent litigation for the rights of Mr Mskhiladze – a stateless person born in the Georgian USSR – before the Russian Constitutional Court (2017) and the European Court of Human Rights (2018). Conceptually, my paper testifies to a productive relationship between a de jure and de facto statelessness in the post-Soviet context.

Salmon and the Clean Water Act: An Unfinished Agenda

Salmon are perhaps the quintessential indicator species for water quality, as they require both sufficient quality and quantity to migrate and spawn. Columbia Basin salmon have been listed under the Endangered Species Act (ESA) for over a quarter-century in large part due to inadequate water flows and poor water quality. A half-century ago, long before the listings, the modern Clean Water Act promised fishable waters. This article explains that this is a promise largely unkept due to implementing agencies’ evasion and disinterest. Recent litigation, however, offers some hope that the statute may yet provide a viable path towards protecting and restoring Columbia Basin waters to the benefit of endangered salmon. From the U.S. Environmental Protection Agency’s (EPA’s) unwillingness to regulate dams to a reluctance by both EPA and the states to establish total maximum daily loads on the Columbia River to a wholesale lack of oversight of pollution from salmon hatcheries, the implementing agencies have failed to use the Clean Water Act regulation to meaningfully restore salmon runs. This article tells that story in some detail. It also reviews a series of recent cases in which environmental plaintiffs have sought to remedy those shortcomings. Their successes thus far suggest the possibility of a more meaningful implementation of the statute that may help recover listed salmon so that they no longer need ESA protection.

Free-ranging horse management in Australia, New Zealand and the United States: socio-ecological dimensions of a protracted environmental conflict

Management of free-ranging horses (Equus ferus caballus) is a complex socio-ecological issue in Australia (AU), New Zealand (NZ), and the United States (US). In these countries, horses are the results of colonial introductions and occupy very harsh rangeland environments exerting a grazing disturbance that has generated ecological concerns. Although many social and ecological concerns are similar, each country also has nuances. In 2018, we conducted a field-based comparison of AU, NZ, and US using an inductive approach to identify similarities, differences, and emerging themes through conversations with >100 individuals from New South Wales Australia, the North Island of New Zealand, and the western US. Additional data sources included field observations and archival documents. Consistent emergent themes identified included: strong public emotion, politicization of management, population growth concerns, negative ecological impact concerns, agreement that horses should be treated humanely, disagreement as to what practices were the most humane, interest and scepticism about fertility control, the need for transparency, compromise to accommodating horses and acknowledgement of social values, and recognition that collaboration is the only means to achieve both healthy rangelands and healthy horses. Unique themes identified included: NZ empowering advocate groups to become part of the solution, conflict between horses and livestock is a mostly US conflict, equids originated in the US, concern about the sustainability of adoption programs, different expectations/options for management on private lands, cultural history such as brumby running in AU, permanent branding of horses in the US, litigation as a uniquely US strategy (although a judgement on recent AU litigation is pending), government data accepted to guide removals in NZ but not always in AU or US, and complex heterogeneous land surface ownership patterns makes management difficult in the US. The difficulty of horse management in these countries is attributed to social intricacies rather than biological/ecological gaps of knowledge.

The Rise of Zero Tolerance and the Demise of Family

This article explores the intersection of immigration law and family law and argues that the current regime dedicated to decimating immigrant families in the United States does not comport with the history and spirit of immigration law and policy. Policies shifting away from family unity and towards an inhumane treatment of immigrant families is anchored in the political rhetoric that normalizes the oppression of immigrants. By characterizing immigrants as nonhuman — even “animals,” as described by President Donald Trump — the current slate of anti-immigrant policies that specifically target families is normalized. Part I discusses contemporary immigration law that terrorizes the family unit and explores the Zero Tolerance Prosecution policy against asylum seekers and other entering immigrants that led to Customs and Border Protection officials tearing children away from their parents at the border. The continuation and expansion of family detention bolsters the policy, in which immigrant families and unaccompanied minors are held in government custody. These policies prevail in part because the narrative surrounding immigrant criminality and dehumanization — despite empirical evidence demonstrating no correlation between immigrant status and criminality — paves the way to more easily tyrannize immigrant families. In contrast to this contemporary movement against the family, Part II provides critical historical context, asserting that the history of immigration law and policy is one deeply committed to family unity. Although this history is clearly marred by the deeply entrenched legacy of racial and ethnic discrimination and is rooted in principles of male dominance, it is undeniable that family primacy is a fundamental principle in immigration law. Part III then explores immigration law’s precarious intersection with the laws that protect families and children, noting how immigration policies cloaked as national security measures have more recently infringed upon immigrant families’ decision making. The last generation of jurisprudence, though, has embraced a broader fealty to family integrity. This Part also discusses how policies of detaining immigrant families and children and separating immigrant families are in direct contradiction to the law’s established commitment to actions that are in the best interests of children and pursuant to child welfare standards. This discussion then leads to Part IV’s exploration of the recent litigation and advocacy efforts to dismantle the Family Separation Policy. It then predicts that this litigation and movement are harbingers of establishing due process rights of immigrant family integrity. The article concludes with a call to advocates to resist the demeaning, dehumanizing narrative and to push forward in preserving and protecting families.

The Dormant Commerce Clause and State Clean Energy Legislation

This Note analyzes recent litigation concerning the constitutionality of state renewable portfolio standards (RPSs) and similar environmental legislation designed to promote clean energy. It begins with a discussion of the current state of both federal and state responses to climate change. From there, it analyzes several legal challenges to state RPSs and other climate-related laws that focus on potential violations of the dormant Commerce Clause. It concludes with a brief exploration of how these cases fit the history and purpose of the dormant Commerce Clause. The Note argues that a narrow view of the doctrine is consistent with the purpose of the dormant Commerce Clause, will reaffirm principles of federalism, will enable state innovation in the renewable energy field, and will make a positive contribution to efforts to mitigate climate change. By structuring statutes so as to draw a court’s attention to the ways in which their legislation fits within the purpose of the dormant Commerce Clause, states can give themselves more space to take aggressive action to promote clean energy and reduce the impacts of climate change.

The Rise the Duty of Prudence and Demise of the Large-Menu Defense: An Update on Recent Erisa Litigation and Divane v. Northwestern

This paper is broken into three separate sections: Section I provides an overview of employee-benefit retirement plans and the statute which sets the guidelines for the regulation of such plans; Section II provides a history of the fall of the “large-menu defense” and the rise of the duty of prudence; Section III explains the recent ERISA litigation involving Northwestern University and argues that the court erred in the dismissal of the case because it misapplied the large-menu defense and failed to recognize the recent case law strengthening the duty of prudence.