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Civil Procedure

Selected Works

2015

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Articles 91 - 109 of 109

Full-Text Articles in Law

The Curious, Perjurious Requirements Of Illinois Supreme Court Rule 12(B)(3)., Wm. Dennis Huber Jan 2015

The Curious, Perjurious Requirements Of Illinois Supreme Court Rule 12(B)(3)., Wm. Dennis Huber

Wm. Dennis Huber

A 2010 survey of Illinois Civil Procedure discussed recent amendments to the Illinois Supreme Court Rules that apply to civil practice issues.1 The survey began with Notices of Appeal and a substantial part of the survey of Notices of Appeal was devoted to Secura Insurance Co. v. Illinois Farmers Insurance Co.2 The purpose of this Article is to examine in greater depth the requirements of filing notices of appeal under Illinois Supreme Court Rule 12(b)(3) and the corresponding proof of service of Rule 373.

Illinois Supreme Court Rule 12(b)(3) has what can only be called “curious, perjurious requirements.” They are …

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The Supreme Court's New Approach To Personal Jurisdiction, Bernadette Bollas Genetin Jan 2015

The Supreme Court's New Approach To Personal Jurisdiction, Bernadette Bollas Genetin

Bernadette Bollas Genetin

The Supreme Court has returned to the issue of whether a “reasonableness” analysis or an “interstate federalism” focus underlies personal jurisdiction doctrine. It has, thus, renewed the debate regarding whether the so-called “forward-looking” or “backward-looking” face of International Shoe should control.

This Article explores two 2014 cases in which the Court took strides toward implementing a liberty interest, or reasonableness, view of personal jurisdiction. In the first case, Daimler AG v. Bauman, the Court introduced a new, narrower approach to general jurisdiction. Under Bauman’s more constrained analysis, general jurisdiction will be available primarily in an individual’s domicile and a corporation’s …

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"Just A Bit Outside!": Proportionality In Federal Discovery And The Institutional Capacity Of The Federal Courts, Bernadette Bollas Genetin Jan 2015

"Just A Bit Outside!": Proportionality In Federal Discovery And The Institutional Capacity Of The Federal Courts, Bernadette Bollas Genetin

Bernadette Bollas Genetin

This Article focuses on pending amendments to Rule 26(b)(1), the scope-of-discovery provision in the Federal Rules of Civil Procedure. Proposed Rule 26(b)(1) would authorize parties to obtain discovery of “any non-privileged matter that is relevant to any party’s claim or defense” if that information is also “proportional to the needs of the case,” based on enumerated proportionality factors – “the importance of the issues at state in the action, the amount in controversy, the parties’ relative access to relevant information, the parties’ resources, the importance of the discovery in resolving the issues, and whether the burden or expense of the …

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Suppose The Class Began The Day The Case Walked In The Door . . ., Jennifer Spreng Dec 2014

Suppose The Class Began The Day The Case Walked In The Door . . ., Jennifer Spreng

Jennifer E Spreng

Problem-solving is the manifestation of a lawyer’s expertise. Unfortunately, the first year of law school is too highly compartmentalized and often semi-rote-learning experience that does not disturb what are many students’ passive undergraduate school learning strategies. Once taught the same way in law school, students are unlikely to develop the more intellectually sophisticated, relational learning strategies to make the cross-topical and cross-disciplinary connections of which problem-solving expertise is made.

This article argues that horizontally and vertically integrated first-year courses with spiral designs that prioritize honing students’ analytical and problem-solving capacities can break this cycle and prepare students with more self-directed …

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Due Process, Class Action Opt Outs, And The Right Not To Sue, Ryan C. Williams Dec 2014

Due Process, Class Action Opt Outs, And The Right Not To Sue, Ryan C. Williams

Ryan Williams

Over the past three decades, the Supreme Court has repeatedly insisted that due process requires that absent class members be given an opportunity to opt out of a class action seeking predominantly money damages. The Court’s asserted justification for linking opt-out rights and due process focuses on absent class members’ potential interest in seeking their own personal “day in court.” But this day-in-court rationale provides a problematic basis for viewing opt-out rights as a categorical requirement of procedural due process. Perhaps most obviously, the day-in-court justification makes virtually no sense in the context of class actions involving only small-value, individual …

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Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton Dec 2014

Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton

Zachary Clopton

The American class action is a procedural tool that advances substantive law values such as deterrence, compensation, and fairness. Opt-out class actions in particular achieve these goals by aggregating claims not only of active participants but also passive plaintiffs. Full faith and credit then extends the preclusive effect of class judgments to other U.S. courts. But there is no international full faith and credit obligation, and many foreign courts will not treat U.S. class judgments as binding on passive plaintiffs. Therefore, some plaintiffs may be able to wait until the U.S. class action is resolved before either joining the U.S. …

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The Law Of Unintended Consequences: Avoiding The Health Care Liability Act Booby Trap, Daniel A. Horwitz Dec 2014

The Law Of Unintended Consequences: Avoiding The Health Care Liability Act Booby Trap, Daniel A. Horwitz

Daniel A. Horwitz

In 2009, interest groups representing both healthcare providers and injured patients worked together to draft and pass several amendments to Tennessee's medical malpractice statute that aimed to improve medical malpractice litigation for all involved. As a result of these reforms, however, the 2009 amendments unexpectedly caused several cases to be dismissed without prejudice on grounds unrelated to the substantive merits of plaintiffs' claims due to their attorneys' technical procedural missteps. What has gone largely unrecognized, however, is a fatal litigation trap lurking beneath the surface of Tennessee's Health Care Liability Act that currently functions to transform even dismissals without prejudice …

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Screening Out Unwanted Calls: The Manipulation Of Standing 'Doctrine', Mark S. Brodin Dec 2014

Screening Out Unwanted Calls: The Manipulation Of Standing 'Doctrine', Mark S. Brodin

Mark S. Brodin

This article explores one dimension of the "closed courthouse door" approach of recent Supreme Court decisions, particularly Amnesty International v. Clapper, and contrasts its restrictive standing doctrine with the open door that has been shown to "reverse discrimination" plaintiffs.

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Judging Multidistrict Litigation, Elizabeth Chamblee Burch Dec 2014

Judging Multidistrict Litigation, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

High-stakes multidistrict litigations saddle the transferee judges who manage them with an odd juxtaposition of power and impotence. On one hand, judges appoint and compensate lead lawyers (who effectively replace parties’ chosen counsel) and promote settlement with scant appellate scrutiny or legislative oversight. But on the other, without the arsenal class certification once afforded, judges are relatively powerless to police the private settlements they encourage. Of course, this power shortage is of little concern since parties consent to settle. Or do they? Contrary to conventional wisdom, this Article introduces new empirical data revealing that judges appoint an overwhelming number of …

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Atlantic Marine And The Future Of Party Preference, Scott Dodson Dec 2014

Atlantic Marine And The Future Of Party Preference, Scott Dodson

Scott Dodson

In Atlantic Marine, the U.S. Supreme Court held that a prelitigation forum-selection agreement does not make an otherwise proper venue improper. Prominent civil procedure scholars have questioned the wisdom and accuracy of this holding. This paper is derived from my presentation at the symposium on Atlantic Marine held at UC Hastings College of the Law on September 19, 2014. In this paper, I defend Atlantic Marine as essentially correct based on what I have elsewhere called the principle of party subordinance. I go further, however, to argue that the principle underlying Atlantic Marine could affect the widespread private market for …

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Pleading And The Litigation Marketplace, Scott Dodson Dec 2014

Pleading And The Litigation Marketplace, Scott Dodson

Scott Dodson

In this essay derived from a lecture delivered at the University of Genoa in 2013, I situate the New Pleading regime of Twombly and Iqbal in the American litigation marketplace. Courts and parties are undoubtedly affected by New Pleading. But, as rational actors, they also are responsive to it. Their responsive behaviors both mitigate the expected effects of New Pleading and cause unintended effects. Assessing New Pleading requires understanding and consideration of these market forces and reactive implications.

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Mandatory Process, Matthew Lawrence Dec 2014

Mandatory Process, Matthew Lawrence

Matthew B. Lawrence

This Article suggests that people tend to undervalue their procedural rights — their proverbial “day in court” — until they are actually involved in a dispute. The Article argues that the inherent, outcome-independent value of participating in a dispute resolution process comes largely from its power to soothe a person’s grievance — their perception of unfairness and accompanying negative emotional reaction — win or lose. But a tendency to assume unchanging emotional states, known in behavioral economics as projection bias, can prevent people from anticipating that they might become aggrieved and from appreciating the grievance-soothing power of process. When this …

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Procedural Triage, Matthew Lawrence Dec 2014

Procedural Triage, Matthew Lawrence

Matthew B. Lawrence

Prior scholarship has assumed that the inherent value of a “day in court” is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a “day in court” can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …

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"Drafting New York Civil-Litigation Documents: Motion Practice Overview Continued" In Pathway To The Profession: From Law School To Lawyer, Gerald Lebovits Dec 2014

"Drafting New York Civil-Litigation Documents: Motion Practice Overview Continued" In Pathway To The Profession: From Law School To Lawyer, Gerald Lebovits

Hon. Gerald Lebovits

No abstract provided.

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"Drafting New York Civil-Litigation Documents: Motion Practice Overview" In Pathway To The Profession: From Law School To Lawyer, Gerald Lebovits Dec 2014

"Drafting New York Civil-Litigation Documents: Motion Practice Overview" In Pathway To The Profession: From Law School To Lawyer, Gerald Lebovits

Hon. Gerald Lebovits

No abstract provided.

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Drafting New York Civil-Litigation Documents: Part Xxxviii—Motions To Vacate Default Judgments, Gerald Lebovits Dec 2014

Drafting New York Civil-Litigation Documents: Part Xxxviii—Motions To Vacate Default Judgments, Gerald Lebovits

Hon. Gerald Lebovits

No abstract provided.

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Infant Compromise Orders In New York, Gerald Lebovits Dec 2014

Infant Compromise Orders In New York, Gerald Lebovits

Hon. Gerald Lebovits

No abstract provided.

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New York Residential Landlord-Tenant Law And Procedure—2014-2015 (7th Ed. 2015), Gerald Lebovits Dec 2014

New York Residential Landlord-Tenant Law And Procedure—2014-2015 (7th Ed. 2015), Gerald Lebovits

Hon. Gerald Lebovits

No abstract provided.

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Rules Of Evidence For Your First Federal Or New York Trial, Gerald Lebovits Dec 2014

Rules Of Evidence For Your First Federal Or New York Trial, Gerald Lebovits

Hon. Gerald Lebovits

This article explains the basics of the rules of evidence for federal and New York bench and jury trials.  

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