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Private Enforcement in Administrative Courts

Mar. 30, 2019—Private-Enforcement-in-Administrative-Courts Scholars debating the relative merits of public and private enforcement have long trained their attention on the federal courts. For some, laws giving private litigants rights to vindicate important policies generate unaccountable “private attorneys general” who interfere with public enforcement goals. For others, private lawsuits save cash-strapped government lawyers money, time, and resources by...

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Licensing Knowledge

Mar. 30, 2019—Licensing-Knowledge When professionals give advice, they disseminate professional knowledge to their clients. Professional advice is valuable to clients because they gain access to a body of knowledge they do not otherwise possess. To preserve the accuracy, and hence the value, of this knowledge transfer, the First Amendment should protect professional speech against state interference that...

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The Exclusionary Rule in the Age of Blue Data

Mar. 30, 2019—The-Exclusionary-Rule-in-the-Age-of-Blue-Data In Herring v. United States, Chief Justice John Roberts reframed the Supreme Court’s understanding of the exclusionary rule: “As laid out in our cases, the exclusionary rule serves to deter deliberate, reckless, or grossly negligent conduct, or in some circumstances recurring or systemic negligence.” The open question remains: How can defendants demonstrate sufficient recurring...

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Repealing Patents

Mar. 30, 2019—Repealing-Patents The first known patent case in the United States courts did not enforce a patent. Instead, it sought to repeal one. The practice of cancelling granted patent rights has appeared in various forms over the past two-and–a-quarter centuries, from the earliest U.S. patent law in 1790 to the new regime of inter partes review...

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The Waiting Game: How States Can Solve the Organ-Donation Crisis

Mar. 30, 2019—The-Waiting-Game-How-States-Can-Solve-the-Organ-Donation-Crisis Thousands of patients in the United States live in limbo every day waiting for a lifesaving organ transplant, and the gap between the number of people who need a transplant and the number of available organs widens every year. Every state currently allows individuals to unilaterally indicate their intent to donate their organs upon...

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Federal Regulation of Third-Party Litigation Finance

Mar. 30, 2019—Federal-Regulation-of-Third-Party-Litigation-Finance Third-party litigation finance has become a powerful and influential industry that will continue to play a significant role in shaping the legal landscape for years to come. The opportunities—and challenges—introduced by this burgeoning industry are legion, and with them has come a swath of disparate state regulations. These regimes have failed to balance important...

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Chancery Court Analyzes MFW’s “Ab Initio” Requirement in Controlling Stockholder Litigation

Feb. 15, 2019—Robert S. Reder & Ashleigh C. Bennett | 72 Vand. L. Rev. En Banc 117 | Olenik v. Lodzinski | Chancery Court Analyzes MFW’s “Ab Initio” Requirement in Controlling Stockholder Litigation | PDF Download Link | Distinguishes exploratory “discussions” from “negotiations” in determining that MFW’s “ab initio” requirement was satisfied.

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Personal Jurisdiction: The Walls Blocking an Appeal to Rationality

Feb. 6, 2019—Richard D. Freer | 72 Vand. L. Rev. En Banc 99 | Personal jurisdiction is a gateway to the judicial system. Without it, a plaintiff cannot vindicate her claims and the community cannot benefit from private enforcement of the law. In 2011, the Supreme Court returned to personal jurisdiction after a twenty-one year hiatus. Over...

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Regulating Offshore Finance

Jan. 28, 2019—Regulating-Offshore-Finance From the Panama Papers to the Paradise Papers, massive document leaks in recent years have exposed trillions of dollars hidden in small offshore jurisdictions. Attracting foreign capital with low tax rates and environments of secrecy, a growing number of offshore jurisdictions have emerged as major financial havens hosting thousands of hedge funds, trusts, banks,...

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Wealth-Based Penal Disenfranchisement

Jan. 28, 2019—Wealth-Based-Penal-Disenfranchisement This Article offers the first comprehensive examination of the way in which the inability to pay economic sanctions—fines, fees, surcharges, and restitution—may prevent people of limited means from voting. The Supreme Court has upheld the constitutionality of penal disenfranchisement upon conviction, and all but two states revoke the right to vote for at least...

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Boilerplate and the Impact of Disclosure in Securities Dealmaking

Jan. 28, 2019—Boilerplate-and-the-Impact-of-Disclosure-in-Securities-Dealmaking Capital markets dealmaking, like many kinds of business transactions, is built on a foundation of copied and recycled language—what many call boilerplate. Regulators and the bar periodically call for less reliance on boilerplate, but despite these pressures, boilerplate remains a fixture of ever-growing securities disclosures. This Article explores why boilerplate persists and how it...

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Disclosing Prosecutorial Misconduct

Jan. 28, 2019—Disclosing-Prosecutorial-Misconduct Prosecutorial misconduct in the form of Brady violations continues to plague the criminal justice system. Brady misconduct represents a fundamental breakdown in the adversarial process, denying defendants a fair trial and undermining the legitimacy of the criminal justice system. Commentators have responded by proposing a range of reforms to increase Brady compliance. Yet these...

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Penile Polygraphy: The Admissibility of Penile Plethysmography Results at Sentencing in Tennessee

Jan. 28, 2019—Penile-Polygraphy-The-Admissibility-of-Penile-Plethysmograph-Results-at-Sentencing-in-Tennessee State judges in Tennessee currently consider the results of penile plethysmograph (“PPG”) evaluations when sentencing convicted sex offenders. These highly intrusive physical tests purport to identify whether an offender’s arousal is considered “deviant” by measuring the change in penis size after viewing various stimuli. Because the results are usually buried in psychosexual evaluations that...

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Extinguishing the Firewall: Addressing the Jurisdictional Challenges to Bringing Cyber Tort Suits Against Foreign Sovereigns

Jan. 28, 2019—Extinguishing-the-Firewall-Addressing-the-Jurisdictional-Challenges-to-Bringing-Cyber-Tort-Suits-Against-Foreign-Sovereigns The rapid advancement of technology has resulted in new forms of tortious activity. Increasingly, these cyber torts are perpetrated by foreign states. Notwithstanding other barriers to collecting damages for a cyber tort, a plaintiff suing for a foreign-state-perpetrated cyber tort must prove that the alleged tortious activity satisfies one of the Foreign Sovereign Immunities...

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Introduction: Reflections on the Future of Discovery in Civil Cases

Nov. 30, 2018—Introduction-Reflections-on-the-Future-of-Discovery-in-Civil-Cases AUTHOR: Honorable Paul W. Grimm

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How We Got Here: A Brief History of Requester-Pays and Other Incentive Systems to Supplement Judicial Management of Discovery

Nov. 30, 2018—How-We-Got-Here-A-Brief-History-of-Requester-Pays-and-Other-Incentive-Systems-to-Supplement-Judicial-Management-of-Discovery AUTHOR: E. Donald Elliott

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