Law Commons^™

Erie As A Choice Of Enforcement Defaults, Sergio J. Campos

Articles

The Erie doctrine governs, among other things, when a federal court sitting in diversity jurisdiction may use a federal procedure that differs from the procedure a state court would use. Displacing the state procedure with the federal procedure (or not) may impact the substantive objectives of either state or federal law, but the current Erie doctrine provides little guidance. This Article argues that the Erie doctrine is best understood as governing a choice of enforcement defaults. As argued below, the primary function of civil liability is to protect a substantive entitlement to avoid the legal violation, either directly through specific …

The Paradox Of Political Power: Post-Racialism, Equal Protection, And Democracy, William M. Carter Jr.

Articles

Racial minorities have achieved unparalleled electoral success in recent years. Simultaneously, they have continued to rank at or near the bottom in terms of health, wealth, income, education, and the effects of the criminal justice system. Social conservatives, including those on the Supreme Court, have latched onto evidence of isolated electoral success as proof of “post-racialism,” while ignoring the evidence of continued disparities for the vast majority of people of color.

This Essay will examine the tension between the Court's conservatives' repeated calls for minorities to achieve their goals through the political process and the Supreme Court's increasingly restrictive "colorblind" …

The Meaning Of Mcintyre, Adam N. Steinman

Faculty Scholarship

When certiorari was granted in J. McIntyre Machinery, Ltd. v. Nicastro, 131 S. Ct. 2780 (2011), many hoped that the Supreme Court would provide much-needed clarification to the area of personal jurisdiction. It didn’t. The Court failed to generate a majority opinion, splitting into Justice Kennedy’s four-Justice plurality, Justice Breyer’s two-Justice concurrence, and Justice Ginsburg’s three-Justice dissent.

This essay – for the Southwestern Journal of International Law’s 2012 symposium “Our Courts and the World: Transnational Litigation and Procedure” – examines how state and federal courts have been using the McIntyre decision. Some lower court opinions have mistakenly interpreted McIntyre as …

Qui Tam: Is False Claims Law A Model For International Law?, Paul D. Carrington

Faculty Scholarship

No abstract provided.

A Political Show Trial In The Northern District: Oberlin-Wellington Fugitive Slave Rescue Case, Paul Finkelman

Faculty Scholarship

This chapter from Justice and Legal Change on the Shores of Lake Erie, examines the first important cases ever heard by the U.S. District Court for the Northern District of Ohio. The cases, known as the Oberlin-Wellington Fugitive Slave Cases -- stemmed out of the rescue of a fugitive slave from the custody of a professional slave catcher. The fugitive was seized in Oberlin, and taken to nearby Wellington, and held in hotel while the slave catchers waiting for a train to take them to Columbus. Meanwhile, a mob -- consisting mostly of Oberlin residents, including many Oberlin College …

Aggregate Litigation Goes Public: Representative Suits By State Attorneys General, Margaret H. Lemos

Faculty Scholarship

State attorneys general represent their citizens in aggregate litigation that bears a striking resemblance to the much-maligned damages class action. Yet, while class actions are subject to a raft of procedural rules designed to protect absent class members, equivalent suits in the public sphere are largely free from constraint. The procedural disconnect between the two categories of aggregate litigation reflects a widespread assumption that attorneys general will adequately represent the interests of the state’s citizens, obviating any need for case-specific mechanisms for assuring the loyalty of lawyer to client.

This Article challenges the presumption of adequate public representation. By conflating …

If It’S Broken, Let Them Fix It: Why The Gebser Pre-Litigation Notice Requirement Should Apply To Title Ix Athletics Lawsuits, Zachary Swartz

Catholic University Law Review

No abstract provided.

Electronic Discovery And Sanctions For Spoliation: Perspectives From The Classroom, Robert A. Weninger

Catholic University Law Review

No abstract provided.

Concrete Private Interest In Regulatory Enforcement: Tradable Environmental Resource Rights As A Basis For Standing, Danieli Evans

Articles

This Note proposes a novel solution to standing problems faced by environmental plaintifs seeking to enforce, or to compel agencies to enforce, environmental regulation. It argues that environmental plaintifs should be able to obtain standing to bring an Administrative Procedure Act (APA) review action or a citizen suit based on ownership of private tradable environmental resource rights, created by increasingly popular environmental privatization programs. These rights should operate as a basis for standing even for plaintifs who would otherwise be unable to meet standing requirements of individual injury, causation, and redressability. Relying on tradable rights to environmental resources as a …

The Structural Role Of Private Enforcement Mechanisms In Public Law, J. Maria Glover

Georgetown Law Faculty Publications and Other Works

The American regulatory system is unique in that it expressly relies upon a diffuse set of regulators, including private parties, rather than upon a centralized bureaucracy, for the effectuation of its substantive aims. In contrast with more traditional conceptions of private enforcement as an ad hoc supplement to public law, this Article argues that private regulation through litigation is an integral part of the structure of the modern regulatory state. Private litigation and the mechanisms that enable it are not merely add-ons to our regulatory regime, much less are they fundamentally at odds with it.

Yet mechanisms of enforcement attendant …

Complex Dispute Resolution: Volume Iii: Introduction And Coda: International Dispute Resolution, Carrie Menkel-Meadow

Georgetown Law Faculty Publications and Other Works

The Complex Dispute Resolution series collects essays on the development of foundational dispute resolution theory and practice and its application to increasingly more complex settings of conflicts in the world, including multi-party and multi-issue decision making, negotiations in political policy formation and governance, and international conflict resolution. Each volume contains an original introduction by the editor, which explores the key issues in the field. All three volumes feature essays which span an interdisciplinary range of fields, law, political science, game theory, decision science, economics, social and cognitive psychology, sociology and anthropology and consider issues in the uses of informal and …

Twombly’S Seismic Disturbances, Edward D. Cavanagh

Faculty Publications

(Excerpt)

The Supreme Court's decision in Bell Atlantic Corp. v. Twombly, 550 U.S. 544 (2007), has had a seismic impact on federal civil litigation. We all thought the notice pleading concept introduced un­der the Federal Rules of Civil Procedure had substantially eased the plaintiff's burden at the pleading stage. The Supreme Court in Twombly said "yes, but," and emphasized that notice pleading was never intended to dispense entirely with the need to plead facts demonstrating a right to relief. In short, facts matter: Rule 8 of the Federal Rules of Civil Procedure requires a statement of circumstances, events, and …

Invisible Federalism And The Electoral College, Derek Muller

Derek T. Muller

What role do States have when the Electoral College disappears? With the enactment of the National Popular Vote on the horizon and an imminent presidential election in which a nationwide popular vote determines the winner, States would continue to do what they have done for hundreds of years — administer elections. The Constitution empowers States to decide who votes for president, and States choose who qualifies to vote based on factors like age or felon status. This power of States, a kind of “invisible federalism,” is all but ignored in Electoral College reform efforts. In fact, the power of the …

Contested Elections As Secret Weapon: Legislative Control Over Judicial Decisionmaking, Matthew R. Lyon, Judy M. Cornett

Matthew Lyon

No abstract provided.

It's All About The People: Personal Jurisdiction, Lord Of The Rings And Classroom Community In Civil Procedure I, Jennifer E. Spreng

Jennifer E Spreng

This article describes my ongoing experiments with “learning communities” and “spiral curricula” in my Civil Procedure I classes, as influenced by my eight years as a sole practitioner in Western Kentucky. Despite endorsement from many education theorists and classroom teachers and potential effectiveness in combating student disaffection, neither has made more than the shallowest dent in legal education. “Classroom community” implies a less stratified and more culturally respectful education experience that is more rewarding, more honorable and more likely to be urban law school graduates’ professional future. Spiral curriculum design facilitates analytical depth that leads to a sense of the …

Optimizing Liability For Extraterritorial Torts: A Response To Professor Sykes, Chimene I. Keitner

Chimene I Keitner

No abstract provided.

Some Functions Of Alien Tort Statute Litigation, Chimene I. Keitner

Chimene I Keitner

No abstract provided.

Revalorización Del Precedente Judicial En El Ordenamiento Jurídico Peruano: Una Lectura Comparatística De La Institución, Con Especial Referencia A Los Métodos De Apartamiento Del Precedente Vinculante, Carlos Augusto Acosta Olivo, Rocio De Lily Llanos Navarro

Carlos Augusto Acosta Olivo

Los autores, analizan el sistema de precedentes vinculantes establecido en el artículo 400° del Código Procesal Civil, manifestando que el mismo establece un modelo de índole eminentemente formal y autoritario, por lo cual, en base a un profundo análisis comparatistico de dicha institución jurídica, sostienen que su aplicación en nuestro ordenamiento jurídico sería más funcional y concordante con el principio de autonomía e independencia judicial, si los magistrados pudiesen emplear de manera adecuada mecanismos a través de los cuales pudiesen apartarse válidamente del precedente vinculante. Toda vez que, según los autores, dichos mecanismos no sólo permiten evitar situaciones jurídica, moral …

The Relational Contingency Of Rights, Alex Stein, Gideon Parchomovsky

Alex Stein

In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by …

The Timeliness Of Removal And Multiple-Defendant Lawsuits, Paul Lund

Paul Lund

Although the procedure for removing cases from state to federal court has existed for nearly 225 years, removal remains one of the most controversial aspects of federal jurisdictional law. Each year, more than 30,000 civil cases are removed from state to federal court, and many of those cases involve more than one defendant. One of the most frequently litigated issues in these cases has involved when the notice of removal must be filed. Prior to a recent amendment, the statute governing removal, 28 U.S.C. § 1446(b), required that a notice of removal be filed within thirty days of service on …

Civil Procedure In Cross-Cultural Dialogue: Eurasia Context, Janet Walker, Et Al.

Janet Walker

Structuring Jurisdictional Rules And Standards, Scott Dodson, Elizabeth Mccuskey

Scott Dodson

Managing Summary Judgment, Steven S. Gensler, Lee H. Rosenthal

Steven S. Gensler

No abstract provided.

Special Rules For Social Media Discovery?, Steven S. Gensler

Steven S. Gensler

No abstract provided.

Un Atisbo A 'Transcendental Non Sense And The Functional Approach' De Felix S. Cohen, Carlos Alberto Flores Hernández

Carlos Alberto Flores Hernández

Redacté este ensayo sobre un jurista poco explorado en México,aunque destacado en EEUU: Félix S. Cohen. Precursor del estudio ysistematización del derecho indígena en la Unión Americana, su perspectivafuncionalista destaca en su ensayo Transcendentalnon sense and the functional approach. Presento este trabajo que contieneun atisbo a este importante jurista americano.