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Full-Text Articles in Law
Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus
Advocacy Revalued, Geoffrey C. Hazard Jr., Dana A. Remus
All Faculty Scholarship
A central and ongoing debate among legal ethics scholars addresses the moral positioning of adversarial advocacy. Most participants in this debate focus on the structure of our legal system and the constituent role of the lawyer-advocate. Many are highly critical, arguing that the core structure of adversarial advocacy is the root cause of many instances of lawyer misconduct. In this Article, we argue that these scholars’ focuses are misguided. Through reflection on Aristotle’s treatise, Rhetoric, we defend advocacy in our legal system’s litigation process as ethically positive and as pivotal to fair and effective dispute resolution. We recognize that advocacy …
Quasi-Preemption: Nervous Breakdown In Our Constitutional System, Geoffrey C. Hazard Jr.
Quasi-Preemption: Nervous Breakdown In Our Constitutional System, Geoffrey C. Hazard Jr.
All Faculty Scholarship
No abstract provided.
Toward A Revised 4.2 No-Contact Rule, Geoffrey C. Hazard Jr.
Toward A Revised 4.2 No-Contact Rule, Geoffrey C. Hazard Jr.
All Faculty Scholarship
No abstract provided.
Time Out, Stephen B. Burbank
Straw, Sand, And Sophistry, Stephen B. Burbank
Straw, Sand, And Sophistry, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg
The Unseen Track Of Erie Railroad: Why History And Jurisprudence Suggest A More Straightforward Form Of Erie Analysis, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
This Article proceeds in four parts. Part I discusses federal law as a new category of law after ratification of the Constitution and what that connotes for the time before federal law existed. Part II examines the shift from the natural law perspective, which had dominated jurisprudence into the late nineteenth century, to legal positivism. It was that change more than anything else that doomed the doctrine of Swift v. Tyson, which controlled vertical choice-of-law questions in the federal courts for ninety-six years until the Erie Court declared it unconstitutional. Part III canvasses the development of the Erie doctrine in …
Aggregation On The Couch: The Strategic Uses Of Ambiguity And Hypocrisy, Stephen B. Burbank
Aggregation On The Couch: The Strategic Uses Of Ambiguity And Hypocrisy, Stephen B. Burbank
All Faculty Scholarship
In this Essay, Professor Burbank comments on the essays by Professors Nagareda and Issacharoff. Welcoming the opportunity to revisit the interplay between procedure and substantive law and the question of democratic accountability that Professor Nagareda’s essay presents, Professor Burbank concludes that the parts of that essay are greater than the whole. He finds that Professor Nagareda’s pursuit of unifying themes and a general normative theory leads to inconsistencies in classification between procedure and substance and to an impoverished vision of institutional legitimacy. Professor Burbank voices concern that this quest, which is also evident in the current draft of the American …
Second Circuit 2005 Res Judicata Developments, Jay C. Carlisle
Second Circuit 2005 Res Judicata Developments, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the 2005 survey year, federal courts in the Second Circuit decided a number of important res judicata matters. Several district courts applied the doctrines of claim preclusion and issue preclusion to administrative and arbitral determinations. Several courts also expanded the “actually litigated” requirement for collateral estoppel and liberally applied the doctrine of defensive claim preclusion for counterclaims. Finally, the United States Court of Appeals for the Second Circuit issued seven res judicata decisions. In one, Vargas v. City of New York, the Second Circuit refined the standards for applying the Rooker-Feldman doctrine. This survey article will review some of …
Irregulars: The Appellate Rights Of Persons Who Are Not Full-Fledged Parties, Joan E. Steinman
Irregulars: The Appellate Rights Of Persons Who Are Not Full-Fledged Parties, Joan E. Steinman
All Faculty Scholarship
No abstract provided.
Teaching Civil Procedure Stories (Reviewing Civil Procedure Stories, Foundation Press 2004), Nancy S. Marder
Teaching Civil Procedure Stories (Reviewing Civil Procedure Stories, Foundation Press 2004), Nancy S. Marder
All Faculty Scholarship
No abstract provided.
Shining A Light In A Dim Corner: Standing To Appeal And The Right To Defend A Judgment In The Federal Courts, Joan E. Steinman
Shining A Light In A Dim Corner: Standing To Appeal And The Right To Defend A Judgment In The Federal Courts, Joan E. Steinman
All Faculty Scholarship
No abstract provided.
Offensive Issue Preclusion In The Criminal Context: Two Steps Foward, One Step Back, Michelle S. Simon
Offensive Issue Preclusion In The Criminal Context: Two Steps Foward, One Step Back, Michelle S. Simon
Elisabeth Haub School of Law Faculty Publications
This article addresses whether the expansion of the doctrine of issue preclusion in the federal criminal area should mirror the expansion of the doctrine in the federal civil area. The article examines the general requirements of issue preclusion and the evolution of issue preclusion in both the civil and criminal context. Next, this article examines the current status of offensive and defensive issue preclusion when the first suit is civil and the second suit is criminal, the first suit is criminal and the second suit is civil, and where both the first and second action is criminal. The article then …
The Roles Of Litigation, Stephen B. Burbank
The Roles Of Litigation, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
Semtek, Forum Shopping, And Federal Common Law, Stephen B. Burbank
Semtek, Forum Shopping, And Federal Common Law, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
Managing Punitive Damages: A Role For Mandatory "Limited Generosity" Classes And Anti-Suit Injunctions?, Joan E. Steinman
Managing Punitive Damages: A Role For Mandatory "Limited Generosity" Classes And Anti-Suit Injunctions?, Joan E. Steinman
All Faculty Scholarship
In this Article, I consider whether "limited generosity" classes may be used to determine a defendant's entire liability for punitive damages arising from a defined course of conduct. The goals of such a class action would include adequately punishing and deterring the defendant, keeping the defendant's liability within state-mandated and constitutional limits, and facilitating equitable distribution of the damages among injured plaintiffs. The Article describes the legal limits on punitive damages liability that states have established and that the Supreme Court has held substantive due process to impose, and then carefully examines whether such limits constitute a predicate for mandatory …
Second Circuit 2000-2001 Personal Jurisdiction Developments, Jay C. Carlisle
Second Circuit 2000-2001 Personal Jurisdiction Developments, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
This Survey Article will review some of the district and circuit courts' significant decisions, and comment on future trends for application of the law of personal jurisdiction in the Second Circuit. The Article concludes with a recommendation that district court judges should not grant or deny personal jurisdiction defenses until at least limited jurisdictional discovery has been granted and is completed.
Part Ii: Special Considerations Applicable To Anti-Suit Injunctions In Class Actions, Joan E. Steinman
Part Ii: Special Considerations Applicable To Anti-Suit Injunctions In Class Actions, Joan E. Steinman
All Faculty Scholarship
No abstract provided.
The Newest Frontier Of Judicial Activism: Removal Under The All Writs Act, Joan E. Steinman
The Newest Frontier Of Judicial Activism: Removal Under The All Writs Act, Joan E. Steinman
All Faculty Scholarship
No abstract provided.
Incentives To Settle Under Joint And Several Liability: An Empirical Analysis Of Superfund Litigation, Howard F. Chang, Hilary Sigman
Incentives To Settle Under Joint And Several Liability: An Empirical Analysis Of Superfund Litigation, Howard F. Chang, Hilary Sigman
All Faculty Scholarship
Congress may soon restrict joint and several liability for cleanup of contaminated sites under Superfund. We explore whether this change would discourage settlements and is therefore likely to increase the program 's already high litigation costs per site. Recent theoretical research by Kornhauser and Revesz finds that joint and several liability may either encourage or discourage settlement, depending on the correlation of outcomes at trial across defendants. We extend their two-defendant model to a richer framework with N defendants. This extension allows us to test the theoretical model empirically using data on Superfund litigation. We find that joint and several …
Second Circuit 1999-2000 Res Judicata Developments, Jay C. Carlisle
Second Circuit 1999-2000 Res Judicata Developments, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the 1999-2000 survey year the United States Court of Appeals for the Second Circuit has issued at least twenty-five res judicata decisions expanding the doctrines of claim preclusion and issue preclusion. The court liberally applied claim preclusion but infrequently applied the more expansive doctrine of issue preclusion. Also, the Second Circuit released over fifty unpublished decisions that affect the rights of pro se litigants appearing before the court. These decisions demonstrate the court's immense respect for the doctrine of res judicata. Similarly, the decisions illustrate the extent to which the court relies on the doctrine to achieve finality, to …
Crosscurrents: Supplemental Jurisdiction, Removal, And The Ali Revision Project, Joan E. Steinman
Crosscurrents: Supplemental Jurisdiction, Removal, And The Ali Revision Project, Joan E. Steinman
All Faculty Scholarship
No abstract provided.
The Scope Of Appellate Jurisdiction: Pendent Appellate Jurisdiction Before And After Swint, Joan E. Steinman
The Scope Of Appellate Jurisdiction: Pendent Appellate Jurisdiction Before And After Swint, Joan E. Steinman
All Faculty Scholarship
No abstract provided.
Implementing Procedural Change: Who, How, Why, And When?, Stephen B. Burbank
Implementing Procedural Change: Who, How, Why, And When?, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
A Primer On Prejudgment Interest, Michael S. Knoll
A Primer On Prejudgment Interest, Michael S. Knoll
All Faculty Scholarship
No abstract provided.
An Analysis Of Fee Shifting Based On The Margin Of Victory: On Frivolous Suints, Meritorious Suits, And The Role Of Rule 11, Howard F. Chang, Lucian A. Bebchuk
An Analysis Of Fee Shifting Based On The Margin Of Victory: On Frivolous Suints, Meritorious Suits, And The Role Of Rule 11, Howard F. Chang, Lucian A. Bebchuk
All Faculty Scholarship
When plaintiffs cannot predict the outcome of litigation with certainty, neither the American rule (each litigant bears its own litigation expenses) nor the British rule (the losing litigant pays the attorneys' fees of the winning litigant) would induce optimal decisions to bring suit. Plaintiffs may bring frivolous suits when litigation costs are small relative to the amount at stake; plaintiffs may not bring meritorious suits when litigation costs are large relative to this amount. More general fee-shifting rules are based not only on the identity of the winning party but also on how strong the court perceives the case to …
What's Wrong With This Picture?: Rule Interpleader, The Anti-Injunction Act, In Personam Jurisdiction, And M.C. Escher, Donald L. Doernberg
What's Wrong With This Picture?: Rule Interpleader, The Anti-Injunction Act, In Personam Jurisdiction, And M.C. Escher, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
The effectiveness of interpleader depends upon the availability of injunctions against other proceedings. There is no congressional authorization of such injunctions for rule interpleader cases. If interpleader were an in rem action, one of the other exceptions to the Anti-Injunction Act might save the day, but the Supreme Court has apparently foreclosed that option. This article examines that three-sided conflict. Part II discusses the problem in greater depth, focusing first on how interpleader functions and why it depends on being “the only game in town.” Part II next addresses the background and interpretation of the Anti-Injunction Act, exploring particularly the …
The Effects Of Case Consolidation On The Procedural Rights Of Litigants: What They Are, What They Might Be, Part I: Justiciability And Jurisdiction (Original And Appellate), Joan E. Steinman
All Faculty Scholarship
No abstract provided.
The Effects Of Case Consolidation On The Procedural Rights Of Litigants: What They Are, What They Might Be, Part Ii: Non-Jurisdictional Matters, Joan E. Steinman
The Effects Of Case Consolidation On The Procedural Rights Of Litigants: What They Are, What They Might Be, Part Ii: Non-Jurisdictional Matters, Joan E. Steinman
All Faculty Scholarship
No abstract provided.
Ignorance And Procedural Law Reform: A Call For A Moratorium, Stephen B. Burbank
Ignorance And Procedural Law Reform: A Call For A Moratorium, Stephen B. Burbank
All Faculty Scholarship
No abstract provided.
Civil Practice, Jay C. Carlisle
Civil Practice, Jay C. Carlisle
Elisabeth Haub School of Law Faculty Publications
During the 1992 Survey year, “new” legislation was enacted which fundamentally changes the procedure for commencement of some lawsuits. Effective December 31, 1992, all civil actions in supreme and county courts must be commenced by filing a summons and complaint or summons with notice. Several important amendments to the Civil Practice Law and Rules (“CPLR”) were enacted and effective January 1, 1993, new IAS and escrow check bouncing rules became effective. Additionally, there have been significant developments in the decisional law of statute of limitations, discovery, sanctions, and the legal profession. These and other areas should be of interest to …