Law Commons^™

Federal Rule 44.1: Foreign Law In U.S. Courts Today, Vivian Grosswald Curran

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This article presents an in-depth analysis of the latent methodological issues that are as much a cause of U.S. federal court avoidance of foreign law as are judicial difficulties in obtaining foreign legal materials and difficulties in understanding foreign legal orders and languages. It explores Rule 44.1’s inadvertent introduction of a civil-law method into a common-law framework, and the results that have ensued, including an incomplete transition of foreign law from being an issue of fact to becoming an issue of law. It addresses the ways in which courts obtain information about foreign law today, suggesting among others the methodological …

Family Law Disputes Between International Couples In U.S. Courts, Rhonda Wasserman

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Increasing mobility, migration, and growing numbers of international couples give rise to a host of family law issues. For instance, when marital partners are citizens of different countries, or live outside the country of which they are citizens, or move between countries, courts must first determine if they have jurisdiction to hear divorce or child custody actions. Given that countries around the world are governed by different legal regimes, such as the common law system, civil codes, religious law, and customary law, choice of law questions also complicate family litigation. This short article addresses the jurisdictional and other conflicts issues …

Civil Procedure And Economic Inequality, Maureen Carroll

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How well do procedural doctrines attend to present-day economic inequality? This Essay examines that question through the lens of three doctrinal areas: the “irreparable harm” prong of the preliminary injunction standard, the requirement that discovery must be proportional to the needs of the case, and the due process rights of class members in actions for injunctive relief. It concludes that in each of those areas, courts and commentators could do more to take economic inequality into account.

Confidentiality In The Courts: Privacy Protection Or Prior Restraint?, Sergio J. Campos

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In civil litigation courts often deal with information that is subject to a previously imposed restraint on the ability of a court or others to use the information. Such “evidentiary prior restraints” arise most prominently in settlement agreements, which may include nondisclosure provisions that prevent information concerning the settlement from being used by parties to the agreement. But evidentiary prior restraints can also arise from prior court action, as when parties seek information subject to a protective order or sealing order made by a different court. Although evidentiary prior restraints have received great attention given recent controversies concerning sexual harassment, …

The Commonality Of Causation, Sergio J. Campos

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This essay, a version of which was given as the inaugural Goldman Endowed Lecture at Ohio Northern University School ofLaw, discusses the treatment of causation in class actions, multidistrict litigation, and similar collective litigation. Causation is a ubiquitous element of civil claims, and typically it is treated as an individual element of a claim because it is dependent on the circumstances of each individual claimant. Even if the conduct at issue in litigation is "common, " or the same, for a group of claimants, whether that conduct caused harm to a specific claimant will depend on the unique circumstances of …

Proof At The Salem Witch Trials, Leonard M. Niehoff

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As of the writing of this article, President Donald Trump's tweets have included roughly 400 references to "witch hunts." In a sense, this is unsurprising. The Salem witch trials have a special place in our national identity and vocabulary. Most Americans understand the reference, even if they know few of the historical details. And the phrase "witch hunt" serves as a useful shorthand for any frenzied chase after something that does not exist. The Salem trials also inspire a peculiar fascination: Perhaps no other site of deadly mass hysteria has become a major tourist destination.

Still, most practicing litigators probably …

Distance Legal Education: Lessons From The *Virtual* Classroom, Jacqueline D. Lipton

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Abstract

In the 2018-2019 revision of the American Bar Association (ABA) Standards and Rules of Procedure for Approval of Law Schools, the ABA further relaxed the requirements relating to distance education in J.D. programs. However, outside of a handful of schools that have received permission to teach J.D. courses almost entirely online, most experiments in distance legal education have occurred in post-graduate (i.e. post-J.D.) programs: LL.M. degrees, and various graduate certificates and Master’s degrees in law-related subjects. These programs can be taught completely online without requiring special ABA permission.

This essay reflects on the author’s experiences over a number of …

Comparative Method And International Litigation 2020, Ronald A. Brand

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In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more …