Law Commons^™

Absurd Overlap: Snap Removal And The Rule Of Unanimity, Travis Temple

William & Mary Law Review

Snap removal employs “a literalist approach” to the statute governing the procedural mechanism for removing cases from state court to federal court. In a typical removal scenario, defendants sued in state court would have the option to be heard in federal court instead, given that certain conditions are satisfied. [S]nap removal essentially allows the defendants to forego a condition that would bar removal if they can file before the plaintiff formally notifies them of the lawsuit. This practice of removing a case before being served with formal process—essentially an act of gamesmanship of the civil procedure system—has gained appellate support …

The Forum-Defendant Rule, The Mischief Rule, And Snap Removal, Howard M. Wasserman

William & Mary Law Review Online

Samuel Bray’s The Mischief Rule reconceptualizes and revitalizes that venerable canon of statutory interpretation. Bray’s new approach to the mischief rule offers a textual solution to an ongoing civil procedure puzzle—forum defendants and “snap removal.” The forum-defendant rule provides that a diversity case is not removable from state to federal court when a properly joined and served defendant is a citizen of the forum state. Snap removal occurs whena defendant removes before the forum defendant has been properly served, “snapping” the case into federal court. Three courts of appeals and a majority of district courts have endorsed this practice, concluding …

The Haves Of Procedure, Ion Meyn

William & Mary Law Review

In litigation, “haves” and “have-nots” battle over what procedures should govern. Yet, much greater hostilities have been avoided—a war between the “haves” themselves. “Criminal haves” (prosecutors) and “civil haves” (institutional players) litigate in separate territories and under different sets of rules. This is good, for them, because they have incompatible objectives. This Article contends that protecting the “haves” from each other has profoundly influenced the development of procedure in the United States.

The “haves” reap significant benefits in being insulated from each other as they seek rules responsive to their unique preferences. A “criminal have” seeks easy access to the …

Removal Without Approval? Corporate Litigative Authority To Consent To Federal Removal Where Adverse Parties Are Co-Equal Shareholder Co-Directors, James M. Mcclure

William & Mary Business Law Review

The Case of Swart v. Pawar involved a novel question of law: can a president of a corporation claim authority on behalf of that corporation to consent to federal removal in a suit against a co-equal shareholder co-director even though that president lacks board approval or explicit authority from the business’s bylaws or charter? To address this question, the parties in Swart analogized removal to suit initiation and defense. Since the federal courts hearing the case did not assess the validity of these analogical arguments or a president’s removal authority generally, this Note evaluates the analogies as well as several …

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 …

Specificity Or Dismissal: The Improper Extension Of Rule 9(B) To Negligent Misrepresentation As A Deprivation Of Plaintiffs’ Procedural Due Process Rights, Julie A. Cook

William & Mary Bill of Rights Journal

No abstract provided.

Waiving The Duty To Mitigate In Commercial Leases, Jacqueline Sandler

William & Mary Business Law Review

This Note examines a largely unexplored consequence of jurisdictions adopting a default duty to mitigate for commercial leases: whether a contract provision waiving the duty should be enforced. Only a few courts across the country have addressed the waiver issue in a commercial setting. At least two different appeals courts have enforced a waiver clause and claim that public policy supports their decision. In contrast, a federal court has stated the opposite—that public policy demands waiver provisions be void. Another state has outright voided all waiver clauses by statute. Courts that have enforced waivers have asserted that commercial parties have …

A Moral Rights Theory Of Private Law, Andrew S. Gold

William & Mary Law Review

Private law—the law of torts, contracts, and property—is at an interpretive impasse. The two leading conceptual theories of private law—corrective justice and civil recourse theories—both suffer from significant weaknesses. Given these concerns, private law may even seem incoherent. The problem is not insurmountable, however. This Article offers a new way to understand private law. I will argue that private law is best understood as a means for individuals to exercise their moral enforcement rights.

Moral enforcement rights exist when an individual may legitimately use coercion to force another individual to comply with his or her moral duties. Not all interpersonal …

Plausibility Pleading Employment Discrimination, Charles A. Sullivan

William & Mary Law Review

The Supreme Court’s unanimous 2002 decision in Swierkiewicz v. Sorema N.A., which took a very permissive approach to pleading discrimination claims, may or may not remain good law after Ashcroft v. Iqbal. As is well known, Iqbal took a restrictive approach to pleading generally under the Federal Rules of Civil Procedure, and its application to employment discrimination cases could pose serious problems for plaintiffs attempting to get into federal court. In addition, there is certainly a tension between Swierkiewicz and Iqbal. This is in part because the former is a strong reaffirmation of notice pleading as it has traditionally been …

The Dubious Origins And Dangers Of Clawback And Quick-Peek Agreements: An Argument Against Their Codification In The Federal Rules Of Civil Procedure, Laura Catherine Daniel

William & Mary Law Review

No abstract provided.

Utilizing Statistics And Bellwether Trials In Mass Torts: What Do The Constitution And Federal Rules Of Civil Procedure Permit?, R. Joseph Barton

William & Mary Bill of Rights Journal

Traditional judicial mechanisms that preserve litigants' rights to due process and a jury trial challenge courts to provide litigants their day in court in an efficient and timely manner. This challenge is made exponentially harder where the litigation concerns tortious conduct affecting a large number of persons and giving rise to latent injury. In response to the recent increase in mass tort filings, courts have sought an alternative means of adjudication-the extrapolation of a statistically average, representative plaintiff to other plaintiffs. This Note examines the problems associated with mass tort actions and how two circuit courts of appeals have implemented …

Arbitration And Reform In Private Securities Litigation: Dealing With The Meritorious As Well As The Frivolous, Steven A. Ramirez

William & Mary Law Review

No abstract provided.

Presumed Frivolous: Application Of Stringent Pleading Requirements In Civil Rights Litigation, Douglas A. Blaze

William & Mary Law Review

No abstract provided.

Book Review Of The Biography Of A Legal Dispute, Charles E. Torcia

William & Mary Law Review

No abstract provided.

Federal Procedure - Diversity Jurisdiction - Unincorporated Labor Unions. United Steelworkers Of America V. Bouligny, 86 S. Ct. 272 (1965), David K. Sutelan

William & Mary Law Review

No abstract provided.

The Motion To Strike Out The Evidence In Virginia, J. Brendel

William & Mary Law Review

No abstract provided.

Book Review Of Civil Practice In Municipla And Country Courts, Shannon T. Mason Jr.

William & Mary Law Review

No abstract provided.

Book Review Of Handbook Of The Virginia Rules Of Procedure In Actions At Law, Thomas D. Terry

William & Mary Law Review

No abstract provided.

Summary Judgment In Virginia, Thomas D. Terry

William & Mary Law Review

No abstract provided.

Some Problems Of Removal And Appeal From Courts Not Of Record In Virginia, Harmon D. Maxson

William & Mary Law Review

No abstract provided.