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TABLE OF CONTENTS INTRODUCTION 715 I. INJUNCTION, INJUNCTION: WHAT'S YOUR FUNCTION? 718 A. A Brief History of Injunctions 718 B. The eBay and Winter Decisions and Subsequent Court 720 Rulings [...]

I. INTRODUCTION 259 II. THE CONGRESSIONAL RESPONSE TO CLINIC PROTESTS: FREEDOM OF 261 ACCESS TO CLINIC ENTRANCES ACT OF 1994 III. ABORTION PROTESTS AND THE COURTS: STATE INTERESTS AND THE [...]

The Rule 23(b)(2) class action has taken many forms since it was added to the Federal Rules in 1966. At first, the provision was used largely to enforce the antidiscrimination objectives of the Civil Rights Era, but over time, subsection (b)(2) became a stock device to pursue injunctive and declaratory relief on a class-wide basis. Along with those developments have come attempts to limit the (b)(2) class, first with the excision of most money damages and individualized injunctions, and now with the requirement in the lower courts that the class be 'cohesive.' Though the cohesiveness doctrine lacks a uniform definition, it is usually invoked with the same purpose: avoiding unconstitutional deprivations of class members' claims. That justification is founded on two key errors. First, the doctrine does not meaningfully differentiate claims for money damages and claims for injunctive relief, only the former of which are properly subject to heightened due process limits contemplated by the cohesiveness requirement. Second, the doctrine both overestimates and mishandles any actual preclusion risks from (b)(2) litigation, limiting class relief under murky and counterintuitive standards despite a more sensible approach offered by existing preclusion law. These errors have combined to produce a strong presumption against heterogeneity in injunctive relief class actions, weakening an important tool for the private enforcement of civil rights. Fortunately, the Supreme Court has never required class actions for injunctive relief to be cohesive, permitting the lower courts to reconsider the operation of preclusion in modern class actions and recalibrate their requirements., INTRODUCTION 552 I. THE MODERN (B)(2) CLASS ACTION 556 A. Shutts and Money Damages Class Actions 557 B. Amchem and Settlement Classes 559 C. Wal-Mart and (b)(2) Classes 561 II. [...]

During the period of economic resurgence after the subprime mortgage crisis, China became a manufacturing powerhouse, with Amazon playing a pivotal role. Amazon's attractive policies lured Chinese e-commerce sellers to its platform, subsequently drawing many more customers with their competitive pricing. This surge, however, also invited Chinese counterfeiters onto Amazon's platform. Major brands responded by suing those counterfeit sellers for trademark infringement. As most Chinese sellers failed to attend trials, these cases almost always resulted in uncontested wins for the brands, thereby granting them access to the sellers' financial accounts as a means to satisfy the damage claimed. Many U.S. businesses saw this as a lucrative opportunity. They replicated the strategies by bringing suits against numerous Chinese sellers for guaranteed profits. Yet, these cases against Chinese defendants likely possess four procedural flaws: the arguable invalidity of service pursuant to the Hague Convention on the Service Abroad, the questionable jurisdiction of U.S. courts over Chinese sellers, the potential impropriety in joining numerous sellers in one suit, and the inadequate notice for many Chinese sellers., I. INTRODUCTION 140 II. 'MADE IN CHINA, SOLD ON AMAZON' 141 III. THE RISE OF TRADEMARK LAWSUITS AGAINST CHINESE SELLERS 144 IV. FOUR COMMON PROCEDURAL ISSUES 151 A. Invalid Service [...]

INTRODUCTION Frosted Strawberry Pop-Tarts containing as much pear as they do strawberry. (1) Betty Crocker Fudge Brownies not being fudgy enough. (2) A&W Root Beer, advertised as being 'MADE WITH [...]

The question whether the term 'set aside' in the Administrative Procedure Act (APA) authorizes a federal court to vacate a rule universally--as opposed to setting aside the rule solely as to the plaintiffs--is a significant and contested one. This Essay traces the history of the statutory term 'set aside' from its origins in the 1906 passage of the Hepburn Act to its 1946 placement in the APA. During this era, Congress repeatedly used the term 'set aside' in agency review statutes. This Essay argues that, in doing so, Congress did not intend to depart from the underlying remedial framework created by the law of judgments and equity. The traditional approach limited the ability of a stranger to litigation to enforce a judgment previously obtained by another, even if the stranger proceeded on the same legal theory. The Essay explains how that traditional approach continues to apply in challenges to agency 'adjudications' and offers some reasons for why the same approach ought to apply in challenges to those agency actions that are categorized as 'rulemakings.', INTRODUCTION My goal in this Essay is to clarify how one corner of the system of administrative remedies developed and how it functions in the present day. The general topic [...]

The courts' growing use of universal or nationwide injunctions to invalidate agency rules that they find to be unlawful has given rise to concern, that such injunctions circumvent dialogue among the circuits, promote forum shopping, and leave too much power in the hands of individual judges. Some scholars, joined by the Department of Justice, have argued that such judicial decisions should be limited through restrictive interpretations of the Administrative Procedure Act (APA). This Article takes issue with these authorities. It argues that the courts' use of the APA to vacate a rule as a whole--as opposed to merely enjoining application of the rule to an individual plaintiff---serves vital functions in maintaining judicial control over agency discretion. The Article goes on to argue that such relief is consistent with the language and legislative background of the APA. However, courts have discretion as to whether they will make use of this remedy in individual cases. Starting from these premises, the Article surveys factors that can militate for or against universal relief in particular circumstances. It also suggests possible doctrinal adaptations and structural reforms that could contribute to preventing overuse of universal injunctions., INTRODUCTION 1998 I. THE ADMINISTRATIVE PROCEDURE ACT AND ITS INTERPRETATION 2002 II. THE NEED FOR UNIVERSAL RELIEF IN JUDICIAL REVIEW OF RULES 2005 III. REVISIONIST ACCOUNTS OF [section] 706 AND [...]

INTRODUCTION In Transgender Law Center v. Immigrations and Customs Enforcement, (1) the Ninth Circuit explored the acceptable boundaries of the requisite specificity and reviewability of responses to Freedom of Information [...]

INTRODUCTION The legal battles in the telecommunications industry are fierce. The fact that no single industrial player is the single global leader in 5G technologies stimulates a sweeping wave of [...]

Dr. Seuss Enterprises announced in March 2021 that it would no longer license or publish six of its children's books because those books portrayed people in racist or culturally stereotypical ways. Since then, the public has learned through news reports and social media that other publishers have similarly reviewed and altered their catalogues of classic children's works, including withdrawing them from the public, editing them to remove problematic content, or adding disclaimers to warn the public about racially insensitive or outdated content. The public reaction to Dr. Seuss's decision and these other actions has been largely divided. Some criticized these decisions as censorship or a product of 'cancel culture.' Others applauded the decisions as a long-overdue reckoning with problematic portrayals in children's works. While recent decisions to alter or withdraw classic works have generated significant attention and controversy, it is in fact not uncommon for authors, copyright owners, and publishers to remedy racist or sexist content in their expressive works, especially in works intended for children. This Article examines one approach that copyright owners have taken to deal with racist, sexist, or otherwise problematic classic children's works--ceasing to make those works available to the public. Specifically, copyright owners have attempted to withdraw certain problematic children's works by ceasing to publish, license, perform, or broadcast those works, and otherwise making those works unavailable to the public. This Article reviews well-known examples of copyright owners ceasing to make their popular children's works available to the public, including Dr. Seuss's refusal to publish or license six of its books, United Artists' failure to broadcast cartoons known as the 'Censored Eleven,' and Disney's rejection of its controversial film Song of the South. It examines the copyright law and policy implications of those actions, and explores the balance and conflicts between copyright policy, free speech, and social policy., I. INTRODUCTION 74 II. OH, THE CONTENT YOU'LL CANCEL: WITHDRAWING PROBLEMATIC CLASSIC WORKS 79 A. Classic Children's Literature 80 B. Classic Children's Films 84 C. Withdrawing Classic Children's Works & [...]

I. INTRODUCTION 253 II. THE CONGRESSIONAL RESPONSE TO CLINIC PROTESTS: FREEDOM OF ACCESS TO CLINIC ENTRANCES ACT OF 1994 255 III. ABORTION PROTESTS AND THE COURTS: STATE INTERESTS AND THE [...]