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An Ounce Of Prevention: Solving Some Unforeseen Problems With The Proposed Amendments To Rule 56 And The Federal Summary Judgment Process, Adam N. Steinman
An Ounce Of Prevention: Solving Some Unforeseen Problems With The Proposed Amendments To Rule 56 And The Federal Summary Judgment Process, Adam N. Steinman
Faculty Scholarship
The Civil Rules Advisory Committee has recently proposed the most significant revisions to Rule 56 since the Federal Rules of Civil Procedure were adopted seventy years ago. Although the stated goal of the proposed amendments is laudable - "to improve the procedures for making and opposing summary-judgment motions, and to facilitate the judge's work in resolving them" - this Essay in the Northwestern University Law Review Colloquy identifies some unanticipated problems with the proposed text. Contrary to the Advisory Committee's intent, the proposed text may inadvertently make substantial changes to the summary-judgment standard and the burdens on litigants at the …
What Is The Erie Doctrine? (And What Does It Mean For The Contemporary Politics Of Judicial Federalism?), Adam N. Steinman
What Is The Erie Doctrine? (And What Does It Mean For The Contemporary Politics Of Judicial Federalism?), Adam N. Steinman
Faculty Scholarship
As when Erie Railroad Co. v. Tompkins was decided seventy years ago, federal courts today are seen as more favorable to corporate and business interests than many of their state-court brethren. The current situation is due in no small part to federal courts' comparatively pro-defendant approaches to summary judgment, class certification, and other procedural issues. The Court's decision in Bell Atlantic Corp. v. Twombly, which tilts federal pleading standards in favor of defendants, will likely have similar federalism implications. This Article presents a straightforward argument that the Erie doctrine may require federal courts to follow state-law standards on summary judgment, …
Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh
Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh
Faculty Scholarship
The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …
Looking Down The Road Less Traveled: Challenges To Persuading The Legal Profession To Define Problems More Humanistically, Nancy A. Welsh
Looking Down The Road Less Traveled: Challenges To Persuading The Legal Profession To Define Problems More Humanistically, Nancy A. Welsh
Faculty Scholarship
This essay will focus on three factors that may help to explain why it seems to be so difficult for many lawyers to escape the confines of a narrow, legalistic framing of issues-or more poetically, why they may be predisposed against looking down "the road less traveled by." These factors should be taken into account as challenges to the widespread adoption of innovative, more humanistic approaches to lawyering. First, the essay will turn to research regarding the psyches and psychological needs of the people who choose to attend law school and become lawyers. Second, the essay will consider what is …