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Invisible Settlements, Invisible Discrimination, Minna J. Kotkin Mar 2006

Invisible Settlements, Invisible Discrimination, Minna J. Kotkin

Faculty Scholarship

No abstract provided.


Terminating Calder: "Effects" Based Jurisdiction In The Ninth Circuit After Schwarzenegger V. Fred Martin Motor Co., A. Benjamin Spencer Jan 2006

Terminating Calder: "Effects" Based Jurisdiction In The Ninth Circuit After Schwarzenegger V. Fred Martin Motor Co., A. Benjamin Spencer

Faculty Scholarship

None available.


The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court, A. Benjamin Spencer Jan 2006

The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court, A. Benjamin Spencer

Faculty Scholarship

The issue of discovery misconduct, specifically as it pertains to the pre-litigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area. In Pension Committee of University of Montreal Pension Plan v. Bank of America Securities, Judge Shira Scheindlin - of the Zubulake e-discovery cases - penned a scholarly and thorough opinion setting forth her views regarding the triggering of the duty to preserve potentially relevant information pending litigation and the standards for determining the appropriate sanctions for various breaches of that duty. Not ...


The Right To Counsel On Appeal: Civil Douglas, 15 Temp. Pol. & Civ. Rts. L. Rev. 603 (2006), Steven D. Schwinn Jan 2006

The Right To Counsel On Appeal: Civil Douglas, 15 Temp. Pol. & Civ. Rts. L. Rev. 603 (2006), Steven D. Schwinn

Faculty Scholarship

No abstract provided.


Only One Kick At The Cat: A Contextual Rubric For Evaluating Res Judicata And Collateral Estoppel In International Commercial Arbitration, Randy D. Gordon Jan 2006

Only One Kick At The Cat: A Contextual Rubric For Evaluating Res Judicata And Collateral Estoppel In International Commercial Arbitration, Randy D. Gordon

Faculty Scholarship

Arbitration is the preferred method of resolving disputes arising out of international commercial transactions. It stands outside national legal systems because contracting parties agree in advance that they want neutral arbitrators — not local judges and juries — deciding who is at fault when a commercial relationship breaks down. But arbitration nevertheless butts up against litigation from time to time, often because one party attempts to arbitrate a matter that has been litigated to conclusion or vice versa. This article examines — through a contextual approach — questions of preclusion that thereby arise and ultimately suggests that res judicata and collateral estoppel rules developed ...


Civil Contempt Confinement And The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005: An Examination Of Debtor Incarceration In The Modern Age, Jayne S. Ressler Jan 2006

Civil Contempt Confinement And The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005: An Examination Of Debtor Incarceration In The Modern Age, Jayne S. Ressler

Faculty Scholarship

No abstract provided.


A Modest Proposal: Recognizing (At Last) That The Federal Rules Do Not Declare That Discovery Is Presumptively Public, Richard L. Marcus Jan 2006

A Modest Proposal: Recognizing (At Last) That The Federal Rules Do Not Declare That Discovery Is Presumptively Public, Richard L. Marcus

Faculty Scholarship

No abstract provided.


Revitalizing Frcp 68: Can Offers Of Judgment Provide Adequate Incentives For Fair, Early Settlement Of Fee-Recovery Cases?, William W. Schwarzer Jan 2006

Revitalizing Frcp 68: Can Offers Of Judgment Provide Adequate Incentives For Fair, Early Settlement Of Fee-Recovery Cases?, William W. Schwarzer

Faculty Scholarship

No abstract provided.


E-Discovery And Beyond: Toward Brave New World Or 1984?, Richard L. Marcus Jan 2006

E-Discovery And Beyond: Toward Brave New World Or 1984?, Richard L. Marcus

Faculty Scholarship

No abstract provided.


The 2000 Amendments To The Discovery Rules, Richard L. Marcus Jan 2006

The 2000 Amendments To The Discovery Rules, Richard L. Marcus

Faculty Scholarship

No abstract provided.


Designer Trials, Elizabeth G. Thornburg Jan 2006

Designer Trials, Elizabeth G. Thornburg

Faculty Scholarship

This article considers the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing, without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party with the greatest pre-dispute bargaining power.

Such a ...


Just Say 'No Fishing': The Lure Of Metaphor, Elizabeth G. Thornburg Jan 2006

Just Say 'No Fishing': The Lure Of Metaphor, Elizabeth G. Thornburg

Faculty Scholarship

The phrase "fishing expedition" is widely used in popular culture and in the law. In the case of metaphorical "fishing" in the law, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence a result. When used by the court, it is uninformative. Worse, the fishing metaphor may itself shape the way the court thinks about the kind of issue or claim involved. Accusations of "fishing" also affect the language and position of the litigants. Parties arguing against pleadings or discovery use the metaphor as a rhetorical weapon, stigmatizing their opponents, instead of ...