Indirect Purchaser Suits after the Class Action Fairness Act

Restraining Multiple Bites at the Class Certification Apple: May a Federal Court Enjoin a State Court from Relitigating a Class Certification Denial?

A Transatlantic Assessment of the Passing-on-Standing Matrix: A Reconciliation of Economic and Justice Approaches

Federal courts are reluctant to review the work of state and local administrative agencies. Despite the presence of diversity or federal question jurisdiction to challenge final agency action, federal courts have sometimes abstained from exercising their jurisdiction out of fear of disrupting a complex regulatory scheme and displacing state courts in the uniform development of state regulatory policy. At other times, federal courts have treated review of state administrative action as appellate in nature and therefore beyond the jurisdiction of the federal district courts, especially when review of agency action would be deferential under state law. And at still other times, federal courts have invoked preclusion principles to bar federal challenges to agency action that was judicial in nature. While recent decisions of the Supreme Court may have moved away from imposing a jurisdictional bar, the American Law Institute proposes to revive such a limit, arguing that such review of agency action is contrary to the historic role of the federal courts and would alter their essential function as courts of original jurisdiction. In this Article, the authors challenge these various practices preventing review of nonfederal administrative action, and they question the rationales behind them. They argue that, as a historical matter, federal courts once engaged in a robust review of state administrative action, even as to issues of state law. In addition, they suggest that concern for federal court interference with uniformity of state policymaking has been overstated, while traditional concerns of federal jurisdictional policy in providing a neutral forum for out of staters as well as those raising federal challenges to state and local action, have been slighted. They also attack the characterization of judicial review of administrative action as appellate, and suggest why it is both descriptively accurate and normatively desirable to see judicial review as an original proceeding distinct from agency action. And in many cases, they observe, according state agency decisionmaking the same level of deference that it would obtain in a state court would serve as a better measure of the respect owed such decisionmaking than formal preclusion. Although the Article takes the position that federal courts should not shy from entertaining diversity-based challenges to state administrative decisionmaking, or even most challenges grounded in federal law, it concludes that, absent diversity, due process reasonableness challenges to agency action should ordinarily be relegated to state courts.

Spokeo: The Quasi-Hohfeldian Plaintiff and the Non-Federal Federal Question

The recent Supreme Court decision Jaffee v. Redmond (1996) recognized a psychotherapist-patient privilege in federal court. The background of privileged communication laws in general, the federal privileged communications rules in particular, the facts behind Jaffee v. Redmond, and the final court ruling are reviewed. The impact of the decision and possible future directions for the psychotherapistpatient privilege in federal and state courts also are discussed. The recent Supreme Court decision Jaffee v. Redmond ( 996) established that the communications between psychotherapists and patients are privileged in federal courts under certain circumstances. In this article we describe the general provisions of privilege communications law, the Jaffee v. Redmond case, the likely future directions for the psychotherapist-patient privilege in federal courts, and the potential effects this decision may have on state courts. In explaining the impact of the decision, we review the rationale for privileged communication laws in general and the background on federal privileged communication laws in particular.

The last major treatment of environmentalism in the federal district courts was Wenner's (1982) investigation of the environmental activity in all levels of federal courts during the 1970s. This paper is an updated treatment of the environmental cases within the federal court system, limited to activity within the federal district courts in the two decades between 1970 and 1990. A model of the ability of environmental groups to succeed in the federal district court has been developed and ‘success in court’ as the dependent variable has been used and defined as a win for an environmental group in litigating a question involving some aspect of environmental law. A series of measures for various hypothesized influences on ‘success’ using institutional and cultural variables has been formulated. Both models using logistic regression have been tested. Evidence has been found that the environmental groups engage in strategic behaviour, either by litigating within certain regions or persuading powerful allies to engage in litigation with them, raising the chances of their success.

The Nigerian Constitution of 1989 establishes a system of federal and state courts, but within a structure of unifiedfederal-state jurisdiction from the federal and state high courts, to the federal Court ofAppeal, and to the national Supreme Court. Thus, both sets ofcourts exercise jurisdiction with respect to federal and state laws. Although this system mitigates certain federal-state jurisdictional conflicts, it does not eliminate such conflicts. At the same time, however, the Constitution also providesfor Sharia courts ofappeal under Moslem law andfor customary-law courts ofappeal, thus establishing a tripartite system of justice. Although this system seeks to accommodate Nigeria's ethnic and religious diversity, it does raise problemsfor national unity, judicial uniformity, and equity in the administration of civil and criminal justice.

Voir Dire in Massachusetts State and Federal Courts: Commentary and Suggestions for Revision

Although federal circuit and district court judges are placed within a federal hierarchy, and receive legal and judicial training that emphasizes the importance of the judicial framework and its structure, such judges are also subjected to other pressures such as the types of litigants within the courtrooms as well as their local political environment. Furthermore, such judges are apt to form their own views about politics and legal policy and are often appointed by presidents who approve of their ideological leanings. Thus, federal courts are caught between competing goals such as their willingness to maximize their preferred legal policy, and their place within the judicial hierarchy. This dissertation applies hierarchy and impact theory to assess the importance of the judicial framework and its socialization, by analyzing both the judicial opinions and votes of federal circuit and district court judges in obscenity cases during a four-decade period (1957-1998). The research presented here finds the influence of higher court precedent to correspond in part with the conception of a judicial hierarchy. An analysis of citations of Supreme Court precedent (Roth v. United States (1957) and Miller v. California (1973)) in lower court majority opinions suggests low levels of compliance: lower courts at the circuit and district court level do not signal to the Supreme Court their acceptance of High Court doctrine; thus, except for 'factual' cases, most circuit and district court decisions do not comply formally with higher court precedent. An analysis of judicial votes, however, suggests that a Supreme Court doctrinal shift (to Miller v. California) influences lower court decisions only at the circuit court level. Further investigation suggests that Supreme Court precedent has a greater influence in circuit courts than in district courts: not only is the magnitude greater for circuit (versus district) court decisions, such results occur when controlling for such factors as the appointing president, regional variations, various constitutional claims and types of litigants. Thus, it appears that the influence of Supreme Court doctrine is much stronger in the circuit courts (only one step removed from the Supreme Court) than in district courts yet the hierarchy is influential nonetheless.

INTRODUCTION Litigating takings claims under the U.S. Constitution involves pitfalls not encountered in ordinary constitutional litigation. With respect to takings claims against the federal government, just compensation can ordinarily be awarded only by the Court of Federal Claims (CFC), an court located in Washington, D.C. (1) The CFC, however, has no authority to grant equitable or declaratory relief. (2) Consequently, claimants who wish to advance claims enforced by injunctions or declaratory judgments (for example, that the government action was arbitrary and capricious) must seek relief in an Article III court. This means claimants must often split their claims between two courts, giving rise to tricky questions of timing and preclusion. If they file in the wrong court, or get the sequencing wrong, consideration of the takings claim may be foreclosed. (3) Congress could clean up the mess by rewriting the relevant jurisdictional statutes, but has failed to act. (4) With respect to federal takings claims against state and local governments, the Supreme Court has held that such claims must be initially presented to state courts before they can be heard in federal court. (5) Any legal and factual issues that are resolved by the state courts, however, cannot be relitigated in a subsequent challenge in federal court. (6) Since federal and state takings clauses are generally interpreted the same way, this gives rise to what has been aptly called a trap. (7) Although federal constitutional claims ordinarily can be tried in federal court under 42 U.S.C. [section] 1983, (8) takings claims, because they must be initially presented to state courts, are generally barred from being considered by any federal court other than the U.S. Supreme Court on certiorari from the final state court decision, which is rarely granted. This Essay argues that these pitfalls of litigating federal takings claims rest, in significant part, on an erroneous understanding about the scope of federal judicial authority under the Takings Clause. Starting from the premises that the Constitution does not prohibit takings but only requires that they be compensated, (9) and that compensation can be awarded only in a court in which the government has waived its sovereign immunity, (10) the Supreme Court has concluded--sometimes--that federal courts of general jurisdiction have no authority to consider takings claims as long as an action for compensation is available elsewhere. On other occasions however--and usually without acknowledging the inconsistency--the Court has reviewed takings claims without requiring that they first be submitted to the court having authority to award just compensation. The latter line of authority, although poorly theorized by the Court, is the correct one. There is no rule of law that prevents federal courts of general jurisdiction from adjudicating claims that arise under the Takings Clause --as long as they confine themselves to the question whether there has been a taking that entitles the owner to compensation. Given sovereign immunity, however, any actual award of compensation against the federal government or one of the states (as opposed to a local government) must be made by a court having jurisdiction to render such a judgment. The vehicle for allowing federal courts to consider takings claims, even if they have no authority to award just compensation, is what I call an anticipatory remedy. (11) The primary type of remedy I have in mind is a declaratory judgment, authorized by the Declaratory Judgment Act of 1934. (12) In appropriate circumstances, federal courts of general jurisdiction should be able to entertain claims that a federal or state government unit is proposing to engage in action that would constitute a taking, and if so, to issue a declaration that compensation would be required if the government persists. Anticipatory remedies could also take other forms besides declaratory judgments. …

ongressional "court stripping," or the attempt to take jurisdiction away from courts to review matters of all types, is not new. Jurisdiction-stripping proposals were advanced in Congress as early as 1830. Between 1953 and 1968, over sixty bills were introduced into Congress to restrict federal court jurisdiction over particular topics. The 1970s and 1980s saw efforts to strip the courts of jurisdiction in busing, abortion, and school-prayer cases. Sen. Jesse Helms once proposed a bill to strip the federal courts of jurisdiction to review school-prayer cases. Barry Goldwater, upon learning of the Helms bill, dismissed the proposal as the equivalent of "outlawing the Supreme Court." Congress has for years attempted to strip courts of their jurisdiction to review actions of federal law-enforcement agencies and state courts in order to reverse deci sions they do not like, punish judges, or even avoid future rulings they may not like. Federal courts, which have been essential in expanding and preserving individual rights, are now being barraged by congressional attempts to strip the courts of their power to review. Congress's decisions about the courts' jurisdiction, including appellate jurisdic tion, have considerable effects on their caseloads, although not always in ways that might have been anticipated. Nowhere has this trend been more apparent than in Congress's legislation in the immigration area. With the enactment of the Antiterrorism and Effective Death Penalty Act of 1996 (AEDPA) and the Illegal Immigration Reform and Immigrant Responsibility Act of 1996 (IIRIRA), a Republican Congress and the Clinton administration fundamentally altered judicial review of immigration matters. Despite this legislation restricting judicial review, the caseload at the U.S. Court of Appeals has risen markedly, so much so that immigra tion cases now comprise 18 percent of the federal appellate civil docket. The legislation. The Supreme Court has suggested that "protecting the Executive's discretion from the courts. . . . can fairly be said to be the theme of the legislation." Reno v. Arab-American Anti-Discrimination Comm., 525 U.S. 471, 486 (1997). The AEDPA eliminated judicial review for criminal aliens. It stated that "Notwithstanding any other provision of law, no court shall have jurisdiction to review any final order of removal against any alien who is removable by reason of hav ing committed a criminal offense." In addition, the act deleted the prior provision in federal law that permitted habeas corpus review of claims by aliens who were held in custody pursuant to deportation orders. The IIRIRA was an attempt by Congress to eliminate judicial review of non final orders or rulings primarily involving aliens in removal proceedings. It also con

Victoria Cundiff litigates trade secrets disputes in state and Federal courts nationally, coordinates international trade secrets litigation, and helps clients develop alternatives to litigating trade secrets disputes. She is the Chair of AlPLA's Trade Secrets Litigation Subcommittee and is Co-Chair of the New York State Bar Association's Committee on Trade Secrets. Bradford Newman founded and leads Paul Hastings' International Employee Mobility and Trade Secret practice. He is the author of Protecting Intellectual Property in the Age of Employee Mobility: Forms and Analysis, a comprehensive treatise published by ALM that offers authoritative guidance on legal risks and practical steps companies can take to protect their IP and remedy IP theft. In connection with his national practice spanning many industries, Mr. Newman routinely serves as lead trial counsel in cases with potential eight and nine-figure liability, and has successfully litigated a broad spectrum of trade secret and employee mobility cases in state and federal courts throughout the country. Jeffrey A. Pade is an intellectual property litigator with over 20 years of experience in all phases of patent trade secrets, and other intellectual property laws. He has directed complex and international patent and trade secrets litigation strategies concerning mechanical, semiconductor, and many other technologies for clients around the globe, and actively represents international clients in intellectual property audits, investigations, and strategic initiatives. Anand B. Patel provides strategic business counseling on intellectual property disputes, investigations, and transactions, and has extensive trial and appellate experience in patent and trade secret matters. A former Federal Circuit clerk, he represents a diverse group of clients on technologies ranging from microprocessor fabrication to pharmaceuticals. ********** AS major regions across the world seek to harmonize trade secret law within and across jurisdictions, international companies now should focus on building their own uniform policies and procedures for protecting their intellectual property and defending against claims of misappropriation. Given the recent passage of the Defend Trade Secrets Act (DTSA) and the EU Trade Secrets Directive (the Directive), it is clear that both regions have recognized the substantial value of trade secrets to the global economy and have decided to take analogous stances on the basics of trade secret law, including what constitutes a trade secret and how a violation occurs. Although the similarities are not unexpected the WTO Agreement on Trade-Related Aspects of Intellectual Property Rights (TRIPS Agreement) (1) provides many foundational provisions there are important nuances in each locale's rules that affect how companies should consider enforcing trade secret rights and defending against misappropriation claims across those major international jurisdictions. I. Overview of the DTSA After several unsuccessful attempts over more than five years, (2) Congress in April overwhelmingly approved (3) and President Obama in May signed (4) the DTSA, which provides a Federal private right of action for trade secret misappropriation. The DTSA is incorporated into the previously-enacted Economic Espionage Act (EEA), (5) which provides criminal penalties for misappropriation. (6) The DTSA pulls heavily from the Uniform Trade Secrets Act (UTSA), (7) already in force in some form in 48 states, (8) by providing similar definitions of key terms and remedies for misappropriation. (9) In addition to providing the right to sue in Federal court (importantly, without preempting parallel state law claims (10)), the DTSA provides an ex parte seizure mechanism and whistleblower immunity. II. Overview of the EU Directive In 2013, after studies (11) showed the importance of trade secrets to the economy, particularly to small and medium-sized enterprises, and the fears of many organizations that asserting claims for misappropriation would result in inadequate remedies and potentially place their trade secrets at risk of public disclosure, the European Commission proposed a Directive to address differences in the trade secret laws of the EU Member States. …

“If the law has made you a witness, remain a man of science; you have no victim to avenge, no guilty or innocent person to convict, ruin or save. You must bear testimony within the limits of science”[1]. Dr. P.C.H. Brouardel 19th Century French medico-legalist Pain specialists are being asked to participate in medico-legal matters at an increasing rate. A recent survey revealed that 72% of pain clinicians have engaged in medico-legal work at some level within the last year, with 24% of those clinicians being called to court to provide testimony [2]. Despite this volume of medico-legal activity, professional societies have offered minimal guidance with respect to the issue of standards for medico-legal work. With particular reference to standards for scientific testimony, federal and many state courts have demanded greater accountability. The change began in 1993 with the landmark decision, Daubert v. Merrell Dow Pharmaceuticals, Inc. , where the U.S. Supreme Court announced new standards for the admissibility of expert testimony [3]. This article addresses the importance of Daubert and its progeny to pain specialists engaging in medico-legal activity. Concerns regarding the standards of the admissibility of expert testimony have persisted for many years. In 1923, the Appeals Court of the District of Columbia addressed the admissibility of expert testimony in Frye v. United States [4]. This federal case established the “ Frye test,” or the “general acceptance” test for the admission of expert testimony. It was adopted in all federal courts and in most state courts. Under Frye , expert testimony was permitted where the court found that the scientific principle of the underlying testimony was “sufficiently established to have gained general acceptance in the particular field in which it belongs.” In 1975, the Federal Rules of Evidence were adopted for use at …

Fraudulent Joinder, Federalism, and the Twombly/Iqbal Problem

Getting off the Dole: Why the Court Should Abandon its Spending Doctrine, and How a Too-clever Congress Could Provoke it to do So