Law Commons^™

Preliminary Injunction Standards In Massachusetts State And Federal Courts, Arthur D. Wolf

Faculty Scholarship

Concurrent jurisdiction frequently allows attorneys the choice of filing a complaint in state or federal court. State courts presumptively have jurisdiction over claims rooted in federal law. At times, state courts are required to entertain federal claims. Similarly, federal courts have authority over state claims because of diversity, federal question, and supplemental jurisdiction. Many claims are rooted in both state and federal law, such as antitrust, civil rights, environmental, consumer protection, and civil liberties. Confronted with the choice of state or federal court, the attorney must evaluate a variety of factors before deciding in which court to file.

In a …

Rule 15(C) Mistake: The Supreme Court In Krupski Seeks To Resolve A Judicial Thicket, Robert A. Lusardi

Faculty Scholarship

While recognizing the importance of a statute of limitations, Federal Rule of Civil Procedure 15 acts as a counterbalance to such statutes by allowing a plaintiff to freely amend a complaint to assert additional claims, or to name new or additional parties, and have those amendments relate back to a complaint filed within the statute of limitations even though that statute has run.

There have been interpretive problems, particularly with the language of Rule 15 (c)(1)(C)(ii). These problems arise when the "amendment changes the party or the naming of the party" after the statutory period and the conditions of Rule …

When The Bell Can't Be Unrung: Document Leaks And Protective Orders In Mass Tort Litigation, William G. Childs

Faculty Scholarship

This Article focuses on the proper balance for the tort system to strike between its role as a means for resolving disputes and its potential role as a means for obtaining information about the conduct of the parties, especially as that conduct affects public health.

The Author states that most protective orders in mass torts have been appropriate, and most documents presently designated as confidential have been properly designated, at least under the policies that have been established to date. The Author starts with the notion that protective orders have value and that there are reasons to try to prevent …

The Station Nightclub Fire And Federal Jurisdictional Reach: The Multidistrict, Multiparty, Multiforum Jurisdiction Act Of 2002, Peter Adomeit

Faculty Scholarship

The Multidistrict, Multiparty, Multiforum Jurisdiction Act of 2002 has great potential for expediting The Station fire cases. The object of the Act is to place all of the cases from a mass disaster before a single judge, who can supervise discovery, then try the issue of liability, and either try or remand the issue of damages. How this new procedural tool will function is uncertain. The Act consolidates the power in one court to either urge the parties to accept a global settlement, or send the unresolved cases to trial. There are many unanswered questions. It is up to judges …

Moving Violations: An Examination Of The Broad Preemptive Effect Of The Carmack Amendment, Jeanne M. Kaiser

Faculty Scholarship

This Article addresses the general principles of preemption, and describes the history, purpose and language of the Carmack Amendment. The Article then demonstrates that at the time the amendment was passed, Congress had no intention of preempting claims based on moving industry misconduct. Part II discusses the constitutional principles that govern application of the law of federal preemption and describes how application of preemption in Carmack Amendment cases has diverged from the overall application of preemption principles in other areas of congressional legislation. Finally, Part III argues that the courts have improperly granted the moving industry carte blanche to deceive …

Comment On The Supplemental-Jurisdiction Statute: 28 U.S.C. § 1367, Arthur D. Wolf

Faculty Scholarship

This Article discusses the supplemental-jurisdiction statute of 1990, 28 U.S.C. § 1367, which has generated more commentary than perhaps any other jurisdictional section. Together, § 1331, which traces its history to the Judiciary Act of 1875, and § 1332, which dates back to the Judiciary Act of 1789, did not undoubtedly promote more examination in their first eight years of existence. One might speculate why § 1367 has been the focus of so much commentary, largely critical: critical of the speed with which § 1367 was enacted, critical of the narrow range of persons involved in its drafting, critical of …

Codification Of Supplemental Jurisdiction: Anatomy Of A Legislative Proposal, Arthur D. Wolf

Faculty Scholarship

The historic nature of congressional action in codifying supplemental jurisdiction in section 1367 calls for a close examination of the legislative process and product. Section I of this Article presents a brief survey of the development of supplemental jurisdiction. Section II examines the history of the legislative process that produced section 1367. Section III contains a preliminary review of judicial decisions under the new supplemental jurisdiction statute. The Article concludes with some editorial remarks regarding the statute and the process by which it became public law.

Consolidating The Preliminary Injunction Hearing And Trial: Changing The Rules In The Middle Of The Game, Arthur D. Wolf

Faculty Scholarship

In this Article the Author addresses the issues surrounding consolidation, the situation that arises when a court decides the merits of a dispute based solely on the record produced at a hearing on motion for a preliminary injunction. The Author identifies some of the more flagrant abuses that trial and appellate courts have committed in reaching the merits after only a hearing on a motion for preliminary relief. The proposed amendments discussed in the Article would serve both courts and parties. They would prevent the kind of abuses discussed in this article by requiring that the parties be informed of …

Nationwide Service Of Process: Due Process Limitations On The Power Of The Sovereign, Robert A. Lusardi

Faculty Scholarship

There are a number of instances in which a federal court asserts personal jurisdiction by service of process beyond the territorial limits of the state in which it sits. The most common examples of these assertions of jurisdiction are the use of a state's long-arm statute and the "bulge" provision of the federal rules. But, in addition, there are a number of statutes by which Congress has authorized nationwide service of process in particular circumstances.

It is generally accepted that Congress may authorize expansion limits of the states in which it sits, including authorization of extraterritorial service of process. However, …

Preliminary Injunctions: The Varying Standards, Arthur D. Wolf

Faculty Scholarship

The Author undertakes a survey in this Article which shows that the Supreme Court and the courts of appeals have not articulated or applied consistent criteria for preliminary injunctive relief. Their decisions have described a sinuous path through primary standards, alternative tests, and sliding scale variations. Part of the difficulty may be because the Supreme Court has not taken a firm hand in resolving conflicts between and among the circuits on critical issues involving interlocutory injunctions. In addition while the courts of appeals make reference to each others' opinions, they have not demonstrated a desire to achieve uniformity in their …