Tyler Mikulis proposes that courts allow cases with anonymous John Doe defendants "to continue under diversity jurisdiction" but that "plaintiffs ought to be required to make a good faith effort to identify the citizenship of any Doe defendants" and that courts should "allow limited, and temporary, jurisdictional discovery" to permit plaintiffs to do so.
Month: March 2023
Tahnee Thantrong Monnin analyzes a textual difference between §§ 3604(a) and (f) of the Fair Housing Act and concludes, based on a line of cases extending the Fair Housing Act's protections to residents of homeless shelters, "that third-party consideration is and should be sufficient for purposes of applying §§ 3604(a) and (f)."
Profs. Adriana Z. Robertson and Sarath Sanga argue "that an ESG fund must establish a consistent link among the fund’s stated ESG purpose, its ESG investing strategy, and—crucially—the portfolio-level ESG metric." Then, the authors "propose a practical approach to constructing portfolio-level ESG metrics and explain how, in light of [that] analysis, ESG fund managers and the SEC should act."
Katherine Weaver discusses the Ninth Circuit's refusal in Olean v. Bumble Bee Foods LLC "to adopt a per se rule prohibiting class certification when the putative class contains more than a de minimis number of uninjured class members" and concludes that "lower courts grappling with this issue in the future should take into account the Seventh Circuit’s opinion in Mussat v. IQVIA, Inc." and treat classes as an "entity."
Responding to Profs. Chander & Schwartz’s Privacy and/or Trade, Profs. Kristina Irion, Margot E. Kaminski & Svetlana Yakovleva argue that "international trade as a regime is fundamentally the wrong forum for striking a balance" between "the free flow of information and the protection of data privacy."
Jason T. Hanselman analyzes Kennedy v. Bremerton School District, concluding that "[s]chool districts, which must assess indirect coercion to make termination decisions, will struggle to decide whether Kennedy establishes a new legal test or just revamps the old one."
Erin Yonchak, writing on stealthing and on rape exceptions to state abortion bans, concludes that, first, "[c]urrent rape law does not capture a swath of sexual violence, like stealthing—and rape exceptions, as written, do little to provide options for those victims," and second, "if providing abortion access to sexual violence survivors is a priority for legislators in abortion-restricted states, rape exceptions should be broadened to expansively define 'rape' as any unwanted sexual conduct and divorce rape exceptions from the criminal system, which remains an inadequate mechanism for victims of sexual violence."