Digital Commons Network^™

The Preclusive Effect Of Unemployment Compensation Determinations In Subsequent Litigation: A Federal Solution, Ann C. Hodges

Law Faculty Publications

This article examines the use of the doctrine of collateral estoppel to preclude litigation of statutory and common law actions challenging employee discharge based on determinations in unemployment compensation proceedings. First, the article reviews the history of the doctrine of collateral estoppel and examines the policies underlying its application. Next, the article reviews unemployment compensation law and analyzes the cases that have considered whether unemployment compensation determinations have preclusive effect in later litigation. After examining the existing law, the article engages in a comparative analysis of the advantages and disadvantages of according preclusive effect to unemployment compensation determinations, in light …

A Road Less Traveled To A Federal Era, John Paul Jones

Law Faculty Publications

Professor Jones examines efforts to ratify the federal Equal Rights Amendment which ended unsuccessfully in 1982. He argues that efforts to use the federal courts to fill in the gaps in protection of rights based on gender are likely to fall far short of what the Amendment would have provided, and that a renewed attempt at ratification would likely meet the same fate as the earlier one. He suggests a third alternative, U.S. ratification of the Convention on the Elimination of All Forms of Discrimination against Women, as the most feasible means of achieving the goals of the ERA without …

Teaching Legal Research: Past And Present, Joyce Manna Janto

Law Faculty Publications

For years librarians have debated which procedures will most effectively instruct law students in the art of legal research. Ms. Janto and Ms. Harrison-Cox trace the history of these efforts and propose a model program for the teaching of legal research.

Rule Revision Roundelay, Carl W. Tobias

Law Faculty Publications

A critique of the proposed revision of F.R.C.P. Rule 11.

Islamic Constitutionalism And The Concept Of Democracy, Azizah Y. Al-Hibri

Law Faculty Publications

This article will discuss select, basic principles of Islamic law relating to democratic governance, pointing out in the process certain areas of disagreement surrounding them in the literature and the grounds for such disagreements. Part II of this article presents a brief overview of Islamic law in order to provide a foundation for later discussion. The article then assesses the Islamic system of government in light of two major principles of Western democracies. They are (1) the principle that the will of the people shall be the basis of the authority of the government (Principle A) and (2) the principle …

Civil Justice Reform And The Balkanization Of Federal Civil Procedure, Carl W. Tobias

Law Faculty Publications

The recent civil war ripping apart Yugoslavia is a trenchant reminder of the horrors of balkanization. Without trivializing the Yugoslavian experience, the term balkanization usefully applies to developments in American federal civil procedure that now threaten the continued viability of a uniform, simple system of procedure. Thirty-four federal courts' nascent implementation of the Civil Justice Reform Act (CJRA) of 1990 will exacerbate these developments; indeed, if the remaining sixty districts that must issue civil justice expense and delay reduction plans by December 1993 fail to halt this trend, the Act will further fragment procedure. This article cautions those responsible for …

Reconsidering Rule 11, Carl W. Tobias

Law Faculty Publications

The Advisory Committee on the Civil Rules recently proposed that the Supreme Court and Congress amend Federal Rule of Civil Procedure 11. 1 The Rule, as revised in 1983, has been the most controversial amendment in the half-century history of the Federal Rules. Judges have inconsistently applied the 1983 revision, and it has engendered much expensive satellite litigation. Considerable evidence suggests that Rule 11 activity has chilled civil rights plaintiffs and attorneys. These difficulties led the Advisory Committee to initiate a study of the Rule in August of 1990, to solicit written public comments on its operation which were due …

Administrative Law Judges: Past, Present And Future, John Paul Jones

Law Faculty Publications

Prof. Jones' account of the history of administrative law judges. The text of this article is taken from his address at the annual conference and seminar of the National Association of Administrative Law Judges, held October 16-19, 1991 in Richmond, Virginia.

The New Supplemental Jurisdiction Statute--Flawed But Fixable, Wendy Collins Perdue

Law Faculty Publications

A critique of the newly enacted 28 U.S.C. § 1367, which delineated the circumstances under which federal courts could rule on additional claims related to the one that is the basis of federal jurisdiction.

Civil Rights Plaintiffs And The Proposed Revision Of Rule 11, Carl W. Tobias

Law Faculty Publications

The 1983 amendment of Federal Rule of Civil Procedure 11 has been the most controversial revision of the Federal Rules in their fifty-five-year history, and Rule l l's implementation has been most controversial in civil rights cases. Rule ll's application has disadvantaged civil rights plaintiffs more than any other category of civil litigant. Courts have found civil rights plaintiffs in violation of Rule 11 at a higher rate than other types of plaintiffs and have imposed substantial sanctions on them. Civil rights plaintiffs have been required to participate in expensive, unnecessary satellite litigation involving this provision. Indeed, a new study …

Postpetition Lending Under Section 364: Issues Regarding The Gap Period And Financing For Prepackaged Plans, David G. Epstein

Law Faculty Publications

If the priorities provided by section 364(c) are insufficient to entice potential lenders to provide sufficient :financing to a Chapter 11 debtor, the debtor may, with the court's approval, obtain credit by granting the lender a lien on property of the debtor that is senior to existing liens on such property (a "priming lien"). The granting of such a priming lien, however, is subject to several statutory conditions. First, as with section 364(c), the debtor must prove that it cannot obtain credit on any less intrusive basis (i.e., through the use of section 364(a), (b), or (c)). Second, the debtor …

Civil Rights Procedural Problems, Carl W. Tobias

Law Faculty Publications

Congress passed the Civil Rights Act of 1991 primarily to modify numerous Supreme Court opinions of the 1988 Term that jeopardized the rights of minorities and women. Particularly striking about those Supreme Court cases was the number which involved procedural questions and process values. These included the timing of litigation, both when employment discrimination victims must commence actions and when non-parties can reopen civil rights cases resolved through consent decrees; litigant responsibility for the expense of lawsuits; and proof requirements.

Most of the procedural developments in civil rights and employment discrimination litigation of the 1988 Term, however, were only recent …

Environmental Litigation And Rule 11, Carl W. Tobias

Law Faculty Publications

The 1983 amendment to Federal Rule of Civil Procedure 11 has been the most controversial revision in the half-century history of the Federal Rules. Judges have applied amended Rule 11, which requires them to sanction lawyers and parties who do not conduct reasonable inquiries before filing papers, in over 1000 reported opinions, considerably more unreported determinations, and numerous informal contexts. The Rule has engendered much unnecessary satellite litigation and has been implemente4 inconsistently, while attorneys' fees remain the "sanction of choice" for violations. Rule 11 activity has especially disadvantaged civil rights plaintiffs and lawyers, whose lack of resources can make …

U.C.C. Survey: General Provisions, Bulk Transfers, And Documents Of Title, David Frisch

Law Faculty Publications

This article reviews recent case law and related developments under Articles 1, 2, 6 and 7 of the Uniform Commercial Code (U.C.C. or Code).

The President And The Federal Bench, Carl W. Tobias

Law Faculty Publications

Professor Tobias assesses the efforts of the George H.W. Bush Administration in appointing women and African-Americans to the federal bench.

Fact, Fiction, And Forest Service Appeals, Carl W. Tobias

Law Faculty Publications

People who live in the western United States have long considered the United States Forest Service to be a mammoth, hierarchical bureaucracy. The Forest Service has responsibility for managing the national forests, which in some western states comprise substantial components of the total land base. The Forest Service administers the national forests pursuant to numerous congressional mandates. Perhaps the most important and most difficult task that Congress has assigned the Forest Service is to manage the national forests for multiple uses, including resource (timber, mineral, oil and gas) extraction, recreation, fish and wildlife, and water quality. Implementation of this multiple-use …

Montana Fight Over Women's Rights, Carl W. Tobias

Law Faculty Publications

Report of abortion protests that took place in various locations around Montana.

Should Montana Adopt A Civil Justice Reform Act?, Carl W. Tobias

Law Faculty Publications

Civil justice reform in the federal government has become highly controversial. Each branch of the federal government apparently is vying to outdo the others in the field of civil justice reform. Congress passed the Civil Justice Reform Act of 1990 (CJRA) to reduce expense and delay in federal civil litigation, and the federal judiciary has been implementing that statute since late 1990. In December, 1991, the Montana Federal District Court became one of thirty-four federal districts which issued civil justice expense and delay reduction plans to qualify for designation as Early Implementation District Courts (EIDC) under the CJRA.

During October, …

Amending The Other Party Joinder Amendments, Carl W. Tobias

Law Faculty Publications

Comparatively little controversy attended the semi-annual meeting of the Civil Rules Advisory Committee which was held in late November, 1991. During that meeting, however, the Committee preliminarily considered the prospect of amending Federal Rule of Civil Procedure 23, which governs class actions.

The Advisory Committee is now contemplating possible revision of Rule 23 governing class actions. If that effort proceeds, the Committee should seriously consider reexamining Rules 19 and 24(a)(2), the other two party joinder provisions that were simultaneously changed and integrated with Rule 23 more than a quarter-century ago. This would enable the Committee to propose an integrated package …

Civil Justice Reform Roadmap, Carl W. Tobias

Law Faculty Publications

All three branches of the federal government have instituted initiatives aimed at reducing expense and delay in civil litigation. On October 23, 1991, President Bush issued an Executive Order that imposes a number of requirements on government lawyers who participate in civil litigation. During February 1992, the Administration sponsored introduction of the Access to Justice Act, its legislative proposal for civil justice reform. The bill did not pass, because it included certain provisions that apparently proved unacceptable to many members of the House and Senate.

Regardless of how the controversy over civil justice reform is ultimately resolved, the reform effort …

Book Review: The North Carolina Legal Deskbook, Timothy L. Coggins

Law Faculty Publications

A book review on The North Carolina Legal Deskbook: The Common Sense Approach 1992-93.

Legal Lore: Sin, Scandal, And Substantive Due Process, Wendy Collins Perdue

Law Faculty Publications

For students of civil procedure, the names Pennoyer and Neff evoke these dry facts: In an initial suit, one J.H. Mitchell sued Neff in Oregon state court. Because Neff could not be found within Oregon, he was served by pub- lication. Neff never appeared, and a default judgment was entered against him. To satisfy the judgment, Mitchell attached Neff's Oregon real estate. The property was sold at auction, and Pennoyer later acquired it. Nearly a decade later, Neff returned to Oregon and brought suit in federal court to evict Pennoyer from the land, claiming that the original judgment was invalid. …

Dispensing With Wills' Act Formalities For Substantively Valid Wills, J. Rodney Johnson

Law Faculty Publications

This article's thesis is that if it can be established by clear and convincing evidence (i) that a writing was intended to be a will, (ii) that the putative testator had the requisite capacity, and (iii) that the writing was not the product of fraud, duress or undue influence, then the writing ought to be admitted to probate as a will, even though it might fail to comply with some of the formalities contained in the statute of wills. Those who accept this thesis will agree that the present practice ofrequiring strict compliance with the formalities of the statute of …

Civil Justice Planning In The Montana Federal District, Carl W. Tobias

Law Faculty Publications

The Montana Federal District Court recently finalized its civil justice expense and delay reduction plan under the Civil Justice Reform Act (CJRA) of 1990. In April, 1992, the Montana District essentially adopted whole cloth, and made effective, the civil justice plan that it had issued in December, 1991 to qualify for designation as an Early Implementation District Court (EIDC). Relatively few members of the Montana Bar exhibited much interest in the planning effort that preceded promulgation of the civil justice plan. Because the new procedural regime that the Montana District instituted could significantly change the character of federal court practice, …

The Transformation Of Trans-Substantivitiy, Carl W. Tobias

Law Faculty Publications

Professor Linda Mullenix and Professor Gene Shreve have recently ventilated two intertwined issues at the core of modern federal civil procedure. They questioned scholars' growing criticism of the idea that the Federal Rules of Civil Procedure are trans-substantive. Both writers also asked about the increased emphasis that commentators have accorded procedure's detrimental effects on specific rights, such as civil rights, and on particular groups or litigants, such as minorities. The preferable response to these plaints is a single word: Congress. Because the issues that Professors Mullenix and Shreve raise are thought-provoking, however, they deserve elaboration.

Judicial Oversight Of Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

Thirty-four Early Implementation District Courts have recently taken steps to implement the Civil Justice Reform Act of 1990 by issuing civil justice plans premised on reports that their advisory groups assembled. An important component of this unprecedented nationwide examination of the condition of the federal trial courts has now moved to the phase in which circuit committees and the Judicial Conference will review the reports and the plans. If the national experiment in reform of the civil justice system is to reduce expense and delay in civil litigation, the circuit committees and the Judicial Conference must completely and carefully evaluate …

The Montana Federal Civil Justice Plan, Carl W. Tobias

Law Faculty Publications

The Montana Federal District Court and thirty-three other federal districts recently took steps to qualify as Early Implementation District Courts (EIDC) under the Civil Justice Reform Act of 1990. The Montana District completed the development of its civil justice expense and delay reduction plan, which also includes numerous proposed amendments of the local rules necessary to implement the plan, before the December 31, 1991 statutory deadline. In the last issue of this journal, I analyzed the work that preceded development of the plan. I examined the efforts of the Advisory Group to Implement the Civil Justice Reform Act of 1990 …

Civil Rights Conundrum, Carl W. Tobias

Law Faculty Publications

As a case study of the impediments imposed by the revised F.R.C.P. Rule 11 in civil rights litigation, Professor Tobias relates the story of the Robeson County, N.C. prosecution of Eddie Hatcher and Timothy Jacobs, their subsequent civil rights action, and the ensuing Rule 11 sanctions imposed upon their counsel, as reported in In re Kunstler, 914 F.2d 505 (4th Cir. 1990).

Sin, Scandal, And Substantive Due Process, Wendy Collins Perdue

Law Faculty Publications

For students of civil procedure, the names Pennoyer and Neff evoke these dry facts: In an initial suit, one J.H. Mitchell sued Neff in Oregon state court. Because Neff could not be found within Oregon, he was served by publication. Neff never appeared, and a default judgment was entered against him. To satisfy the judgment, Mitchell attached Neff's Oregon real estate. The property was sold at auction, and Pennoyer later acquired it. Nearly a decade later, Neff returned to Oregon and brought suit in federal court to evict Pennoyer from the land, claiming that the original judgment was invalid. The …