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The Choice Is (Not) Yours: Why The Sec Must Further Amend Its Rules Of Practice To Increase Fairness In Administrative Proceedings, Madeline Ilibassi

Brooklyn Journal of Corporate, Financial & Commercial Law

The Securities and Exchange Commission (SEC) plays an extremely important role within the securities industry—it oversees the financial markets, protects consumers, and maintains market efficiency. One of the most important (and recently one of most criticized) responsibilities of the SEC is its duty to enforce the securities laws and punish violators. During the past two decades, and especially after the implementation of the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, the SEC’s Division of Enforcement has grown substantially and has utilized administrative enforcement proceedings at an increasing rate. However; this utilization has been occurring without any substantial …

Defining “Accidents” In The Air: Why Tort Law Principles Are Essential To Interpret The Montreal Convention’S “Accident” Requirement, Alexa West

Fordham Law Review

This Note examines the history of, and the reasons for, the Montreal Convention, which in part forces airlines to indemnify passengers for injuries resulting from “accidents”—a term undefined in the treaty. The Montreal Convention and the subsequent case law interpreting it demonstrate how, to qualify as an “accident,” the injury-producing incident must be causally connected to the plane’s operation. Importantly, the causal connection’s adequacy should be evaluated according to American tort jurisprudence even though the accident requirement itself is an exception to general tort law. This Note focuses on a particular type of injury-producing event, a copassenger tort, because of …

Civil Practice And Procedure, Christopher S. Dadak

University of Richmond Law Review

This article examines developments in Virginia civil procedure and practice in the past year. The survey includes a discussion of the relevant decisions from the Supreme Court of Virginia, changes to applicable rules of practice or procedure, and new legislation, which will likely affect the practice of a civil practitioner in the Commonwealth of Virginia.

Voluntary Dismissal Of Time-Barred Claims, Danielle Calamari

Fordham Law Review

Both state and federal courts have procedural rules that allow a plaintiff to voluntarily dismiss a claim without prejudice and then to refile it within the applicable statute-of-limitations period. However , a plaintiff’ s right to this procedural avenue is not absolute, and courts maintain broad discretion in deciding whether to dismiss a claim with or without prejudice. If a court allows a plaintiff to voluntarily dismiss a time-barred claim without prejudice, the plaintiff may be able to refile the claim in a jurisdiction with a longer statute of limitations. As a result, the defendant loses the ability to assert …

"Arising From" Villanova Law Review: Villanova Law Review's Analysis Of Personal Jurisdiction, Teressa E. Ravenell

Villanova Law Review

No abstract provided.

Class Actions Removability And The Changing Business Of The Supreme Court: Dart Cherokee Basin Operating Co. V. Owens, Stephen Carr

Florida Law Review

Problems of appellate jurisdiction are, by their nature, mainly pragmatic problems. The U.S. Circuit Courts of Appeals are forced to balance the need to provide timely, effective appellate review of district court decisions against the understandable desire for judicial economy.In addition to this inherent tension between fairness and economy, the law is constantly evolving, causing caseloads to wax and wane, and continuously forcing the circuit courts to react by expanding and contracting their rules of appellate jurisdiction. The U.S. Code generally limits appellate review to “final decisions,”and the U.S. Supreme Court has usually instructed the circuit courts to take a …

Intervention In The Tax Court And The Appellate Review Of Tax Court Procedural Decisions, Cole Barnett, Christopher Weeg

Florida Law Review

The Tax Court is an Article I court. It resolves more than 95% of all tax-related litigation—actually nearly 97% of the total federal tax docket in 2012. Despite this substantial role in federal litigation, scholars and courts have generally put aside the issue of what standard is appropriate when a U.S. federal court of appeals reviews Tax Court procedural questions. Section 7482 of the Internal Revenue Code (I.R.C.) grants jurisdiction to the courts of appeals to review Tax Court decisions “in the same manner and to the same extent as decisions of the district courts in civil actions tried without …

Class Actions Removability And The Changing Business Of The Supreme Court: Dart Cherokee Basin Operating Co. V. Owens, Stephen Carr

Florida Law Review

Problems of appellate jurisdiction are, by their nature, mainly pragmatic problems. The U.S. Circuit Courts of Appeals are forced to balance the need to provide timely, effective appellate review of district court decisions against the understandable desire for judicial economy.In addition to this inherent tension between fairness and economy, the law is constantly evolving, causing caseloads to wax and wane, and continuously forcing the circuit courts to react by expanding and contracting their rules of appellate jurisdiction. The U.S. Code generally limits appellate review to “final decisions,”and the U.S. Supreme Court has usually instructed the circuit courts to take a …

Intervention In The Tax Court And The Appellate Review Of Tax Court Procedural Decisions, Cole Barnett, Christopher Weeg

Florida Law Review

The Tax Court is an Article I court. It resolves more than 95% of all tax-related litigation—actually nearly 97% of the total federal tax docket in 2012. Despite this substantial role in federal litigation, scholars and courts have generally put aside the issue of what standard is appropriate when a U.S. federal court of appeals reviews Tax Court procedural questions. Section 7482 of the Internal Revenue Code (I.R.C.) grants jurisdiction to the courts of appeals to review Tax Court decisions “in the same manner and to the same extent as decisions of the district courts in civil actions tried without …

Postjudgment Cost Shifting: Electronic Discovery And 28 U.S.C § 1920(4), Samantha J. Kwartler

St. John's Law Review

(Excerpt)

This Note argues that the circuit courts should adopt a loose narrow interpretation of § 1920(4), like the Federal Circuit did in CBT Flint Partners, LLC v. Return Path, Inc., and tax only a limited number of the electronic discovery services rendered in document production. Part I of this Note examines § 1920(4)’s statutory history and its application in federal court. Part II discusses the varying approaches taken by each side of the circuit split. Finally, Part III argues for implementation of a loose narrow interpretation because it more appropriately comports with other provisions of the Federal Rules …

Private Solutions To Global Crises, Gregory R. Day

St. John's Law Review

(Excerpt)

The contribution of this Article is both theoretical and practical. Considering that MNCs rarely suffer liability abroad, this Article identifies an emerging, understudied type of international agreement able to hold MNCs responsible for torts in the developing world. On a theoretical level, the research herein identifies situations in which arbitral decisions are superior to judicial rulings. This Article also advances the private dispute resolution literature, which has developed slowly due to arbitration’s private and confidential nature. The works that do discuss arbitration overwhelmingly assume that the process favors corporations, rarely mentioning arbitration’s socially desirable qualities. Thus, this Article offers …

Fiat Lux: Tracing A Standard Of Review For Class-Certification Orders, Curtis E.A. Karnow

The Journal of Appellate Practice and Process

No abstract provided.

One Percent Procedure, Brooke D. Coleman

Washington Law Review

Political rhetoric about the one percent is pervasive, as those with the greatest concentrated wealth prosper and the remaining population stagnates. Because of their affluence, the one percent exercise disproportionate control over political and economic systems. This Article argues that federal civil procedure is similarly a one percent regime. The crème de la crème of the bench and bar, along with equally exclusive litigants, often engage in high-stakes, complex civil litigation. It is this type of litigation that dominates both the elite experience and the public perception of what civil litigation is. This litigation is not particularly common, however; while …

Deconstructing Juryless Fact-Finding In Civil Cases, Shaakirrah R. Sanders

William & Mary Bill of Rights Journal

In many states, legislatures have mandated juryless fact-finding in common law–based civil cases by imposing compensatory damage caps that effectively lessen the jury’s traditional and historic role as injury valuator. The primary purpose of most caps was to reign in “excessive” civil jury verdicts, which allegedly caused “skyrocketing” medical malpractice insurance premiums and litigation costs. But no legislatively imposed cap is triggered by a preliminary finding of excessiveness. Trial judges have no authority to determine whether application of a cap is just or fair to the (often) severely injured plaintiff. Despite a shared interpretive methodology with regards to the nature …

Standing Up For Legislators: Reevaluating Legislator Standing In The Wake Of Kerr V. Hickenlooper, William D. Gohl

Northwestern University Law Review

Hornbook constitutional law establishes that Congress and state legislatures are bodies of limited, enumerated powers, and common sense suggests they should get their act together and exercise them more often. But should legislators be permitted to sue in order to exercise their powers when another branch of government infringes on them unconstitutionally, or the body they represent unconstitutionally limits them? This Note argues that, at least in certain circumstances, they should. Following on the heels of the Tenth Circuit’s recent treatment of the issue in its Kerr v. Hickenlooper decisions, this Note proposes a redefinition of the legislator standing doctrine …

One Percent Procedure, Brooke D. Coleman

Washington Law Review

Political rhetoric about the one percent is pervasive, as those with the greatest concentrated wealth prosper and the remaining population stagnates. Because of their affluence, the one percent exercise disproportionate control over political and economic systems. This Article argues that federal civil procedure is similarly a one percent regime. The crème de la crème of the bench and bar, along with equally exclusive litigants, often engage in high-stakes, complex civil litigation. It is this type of litigation that dominates both the elite experience and the public perception of what civil litigation is. This litigation is not particularly common, however; while …

Foreign Judgments In Florida Bankruptcy Courts: Choice Of Law, Statutes Of Limitations, And Other Unresolved Issues, Michael Raudebaugh

Barry Law Review

No abstract provided.

Disruptions' Function: A Defense Of (Some) Form Objections Under The Federal Rules Of Civil Procedure, Amir Shachmurove

Seton Hall Circuit Review

No abstract provided.

Shhh: Eighth Circuit Puts Conservationists Intervenor To Bed In Quiet Title Action In North Dakota Ex Rel. Stenehjem V. United States, Matthew K. Arnold

Villanova Environmental Law Journal

No abstract provided.

Neither Strict Nor Nuanced: The Balanced Standard For False Claims Act Pleading In The Eleventh Circuit, C. Caitlin Giles

University of Miami Law Review

False Claims Act litigation is more hotly contested than ever before. One such controversial issue plaguing federal courts is the proper application of Federal Rule of Civil Procedure 9(b) to actions arising under the False Claims Act. The explosion of litigation under the FCA caused a circuit split to emerge on the correct standard to use when applying Rule 9(b)’s heightened pleading requirement for more particularity. Specifically, courts are split on the level of specificity required to prove that a false claim was submitted to the government. Some apply a “strict” interpretation and require pleadings to include representative samples of …

Casenote Update: The Supreme Court Restricts Plaintiff Options For Climate Change Litigation In American Electric Power Co. V. Connecticut, Matthew R. Weiss

Villanova Environmental Law Journal

No abstract provided.

Changing The Game: The Effects Of The 2012 Revision Of The Icc Arbitration Rules On The Icc Model Arbitration Clause For Trust Disputes, Colin Connor

Georgia Journal of International & Comparative Law

No abstract provided.

“Please Stop Telling Her To Leave.” Where Is The Money: Reclaiming Economic Power To Address Domestic Violence, Margo Lindauer

Seattle University Law Review

In this Article, I argue that economic dependence is a critical factor in violence prevention. For many victims of domestic violence, the economic entanglement with an abusive partner is too strong to sever contact without another source of economic support. This Article is a thought experiment in economic justice; it asks the question: is there a way to provide outside economic support for a victim of violence fleeing a battering partner? In this Article, I examine existing systems such as Social Security, unemployment assistance, work-readiness programs, crowd sourcing, and others to evaluate how these sources could provide emergency economic support …

Neuroimaging Evidence: A Solution To The Problem Of Proving Pain And Suffering?, Brady Somers

Seattle University Law Review

Envision a plaintiff who was injured on the job at a construction site due to his employer’s negligence. The plaintiff has chronic back pain, but it is not verifiable on an X-ray, nor is a physical injury readily discernible by any other technology. Presently, fact finders are given the broad discretion to decide whether they find this plaintiff credible, and accordingly, whether they believe he is truly in pain and deserves damages for pain and suffering. However, neuroimaging—specifically functional magnetic resonance imaging (fMRI)—could allow those fact finders to visualize whether this plaintiff was hurting by depicting the unique signatures that …

If It (Ain’T) Broke, Don’T Fix It: Twombly, Iqbal, Rule 84, And The Forms, Justin Olson

Seattle University Law Review

The past decade has not been kind to the Federal Rules of Civil Procedure (the Rules). From the growth of summary judgment as a mechanism to let judges instead of juries determine facts, to the love–hate relationship with class actions, judicial interpretations of the Rules have revealed a trend toward complicating the ability of plaintiffs to find redress for their claims. Nowhere is this more apparent than in the shifting standards of pleading requirements under Rule 8. Much has been written by academics and practitioners alike regarding the ripples caused by Twombly and Iqbal. Although the Court would like to …

Plausible Pleading In Patent Suits: Predicting The Effects Of The Abrogation Of Form 18, Kyle R. Williams

Michigan Telecommunications & Technology Law Review

On December 1, 2015, amendments to the Federal Rules of Civil Procedure took effect. The changes included, among other things, the abrogation of the Appendix of Forms, which contained templates for summons, complaints, answers, and other litigation documents. Prior to its abrogation, Form 18—a template for a “Complaint for Patent Infringement”—was widely utilized by patent plaintiffs in crafting infringement complaints. Form 18 was created during the Conley pleading regime, when conclusory allegations were generally sufficient to survive a motion to dismiss. Accordingly, the sample allegations in Form 18 were conclusory and bare-bones in nature. Under Conley, plaintiffs who followed this …

#Rule23 #Classaction #Notice: Using Social Media, Text Messaging, And Other New Communications Technology For Class Action Notice And Returning To Rule 23(C)(2)(B)'S "Best Notice Practicable" Standard, Elizabeth M.C. Scheibel

Mitchell Hamline Law Review

No abstract provided.

To Waive Or Not To Waive? Filing Deadlines And Hearing Requests In Administrative Adjudications, Alice Booher Johnson

Journal of the National Association of Administrative Law Judiciary

In Part II of this Article, I provide an overview of subject matter jurisdiction in relation to filing timeframes. I review the distinction between original and appellate jurisdiction using Maryland case law and a sample survey of other state case law to provide background to the question of filing deadlines and hearing requests in administrative adjudications. In Part III of this Article, I elaborate upon Supreme Court precedent on administrative filing deadlines. In Part IV of this Article, I analyze the nature of filing deadlines for hearing requests before various state agencies, with an emphasis on Maryland’s scheme. The case …

Hague Convention On The Law Applicable To Products Liability, Bryant Durham

Georgia Journal of International & Comparative Law

No abstract provided.

Disclosure And The Incurious Attorneys, William F. Cahill, B.A., Ll.B., J.C.D.

The Catholic Lawyer

No abstract provided.