Open Access. Powered by Scholars. Published by Universities.®
- Institution
-
- University of Colorado Law School (4)
- University of Pennsylvania Carey Law School (4)
- Notre Dame Law School (3)
- Roger Williams University (3)
- University of Georgia School of Law (3)
-
- University of Nevada, Las Vegas -- William S. Boyd School of Law (3)
- Boston University School of Law (2)
- Florida International University College of Law (2)
- Georgetown University Law Center (2)
- American University Washington College of Law (1)
- Northwestern Pritzker School of Law (1)
- Southern Methodist University (1)
- University of Kentucky (1)
- University of Michigan Law School (1)
- William & Mary Law School (1)
- Publication Year
- Publication
-
- Scholarly Works (6)
- All Faculty Scholarship (4)
- Publications (4)
- Journal Articles (3)
- Faculty Publications (2)
-
- Faculty Scholarship (2)
- School of Law Conferences, Lectures & Events (2)
- Articles (1)
- Articles in Law Reviews & Other Academic Journals (1)
- Faculty Journal Articles and Book Chapters (1)
- Faculty Working Papers (1)
- Georgetown Law Faculty Lectures and Appearances (1)
- Georgetown Law Faculty Publications and Other Works (1)
- Law Faculty Scholarly Articles (1)
- Life of the Law School (1993- ) (1)
- Popular Media (1)
Articles 1 - 30 of 32
Full-Text Articles in Law
Utilizing Legal Expertise To Positively Impact Coastal Communities, Roger Williams University School Of Law
Utilizing Legal Expertise To Positively Impact Coastal Communities, Roger Williams University School Of Law
Life of the Law School (1993- )
No abstract provided.
Stays, Portia Pedro
Stays, Portia Pedro
Faculty Scholarship
After judges issue orders or judgments, they often face the difficult task of making a determination even more complex than that of the underlying order, but in less time, with less guidance, and with high stakes. These judges are deciding whether to grant a stay pending appeal — whether to prevent the enforcement of a court order or judgment until a court has decided the appeal. Although stays may seem to be a mere procedural technicality, stays are, instead, the new battleground for injunctive litigation. While review was pending, stay determinations have decided if abortion providers could operate in Texas, …
Opting Out Of Discovery, Jay Tidmarsh
Opting Out Of Discovery, Jay Tidmarsh
Journal Articles
This Article proposes a system in which both parties are provided an opportunity to opt out of discovery. A party who opts out is immunized from dispositive motions, including a motion to dismiss for failure to state a claim or a motion for summary judgment. If neither party opts out of discovery, the parties waive jury-trial rights, thus giving judges the ability to use stronger case-management powers to focus the issues and narrow discovery. If one party opts out of discovery but an opponent does not, the cost of discovery shifts to the opponent. This Article justifies this proposal in …
Police Misconduct, Video Recording, And Procedural Barriers To Rights Enforcement, Howard M. Wasserman
Police Misconduct, Video Recording, And Procedural Barriers To Rights Enforcement, Howard M. Wasserman
Faculty Publications
The story of police reform and of "policing the police" has become the story of video and video evidence, and "record everything to know the truth" has become the singular mantra. Video, both police-created and citizen-created, has become the singular tool for ensuring police accountability, reforming law enforcement, and enforcing the rights of victims of police misconduct. This Article explores procedural problems surrounding the use of video recording and video evidence to counter police misconduct, hold individual officers and governments accountable, and reform departmental policies, regulations, and practices. It considers four issues: 1) the mistaken belief that video can "speak …
Who Has Standing To Sue The President Over Allegedly Unconstitutional Emoluments?, Matthew I. Hall
Who Has Standing To Sue The President Over Allegedly Unconstitutional Emoluments?, Matthew I. Hall
Scholarly Works
Three pending lawsuits challenge President Trump's practice of accepting payments and other benefits from foreign governments through his businesses as violative of the Foreign Emoluments Clause. They also allege that the President's practice of accepting payments and benefits from state or federal governmental units violates the Domestic Emoluments Clause. These actions raise interesting questions about the meaning of two little-discussed provisions of the Constitution. But before reaching the merits the courts will first have to grapple with issues of justiciability - in particular, with the question whether plaintiffs have "standing" to bring their claims in federal court. This article explains …
Judging Third-Party Funding, Victoria Sahani
Judging Third-Party Funding, Victoria Sahani
Faculty Scholarship
Third-party funding is an arrangement whereby an outside entity finances the legal representation of a party involved in litigation or arbitration. The outside entity—called a “third-party funder”—could be a bank, hedge fund, insurance company, or some other entity or individual that finances the party’s legal representation in return for a profit. Third-party funding is a controversial, dynamic, and evolving phenomenon. The practice has attracted national headlines and the attention of the Advisory Committee on the Federal Rules of Civil Procedure (Advisory Committee). The Advisory Committee stated in a recent report that “judges currently have the power to obtain information about …
Making Sense Of Legislative Standing, Matthew I. Hall
Making Sense Of Legislative Standing, Matthew I. Hall
Scholarly Works
Legislative standing doctrine is neglected and under-theorized. There has always been a wide range of opinions on the Supreme Court about the proper contours of legislative standing doctrine and even about whether the Court should adjudicate disputes between the other two branches at all. Perhaps owing to these disagreements, the full Court has never articulated a clear vision of the doctrine. While the Court has managed to resolve some cases, it has not achieved the consensus necessary to provide a comprehensive and coherent account of critical doctrinal issues such as what type of injury can give rise to legislative standing …
The Law's Clock, Frederic Bloom
The Law's Clock, Frederic Bloom
Publications
Time is everywhere in law. It shapes doctrines as disparate as ripeness and retroactivity, and it impacts litigants of every status and type--the eager plaintiff who brings her case too early, the death-row inmate who seeks his stay too late. Yet legal time is still scarcely studied, and it remains poorly understood. This Article makes new and better sense of that time. It begins with an original account of time as a tool of institutional power, tracking the relocation of that power from the first western cathedrals to the earliest Supreme Court. It then links time's revealing past to our …
Processing Disability, Jasmine E. Harris
Processing Disability, Jasmine E. Harris
All Faculty Scholarship
This Article argues that the practice of holding so many adjudicative proceedings related to disability in private settings (e.g., guardianship, special education due process, civil commitment, and social security) relative to our strong normative presumption of public access to adjudication may cultivate and perpetuate stigma in contravention of the goals of inclusion and enhanced agency set forth in antidiscrimination laws. Descriptively, the law has a complicated history with disability — initially rendering disability invisible, later, legitimizing particular narratives of disability synonymous with incapacity, and, in recent history, advancing full socio-economic visibility of people with disabilities. The Americans with Disabilities Act, …
Mixed Signals On Summary Judgment, Howard Wasserman
Mixed Signals On Summary Judgment, Howard Wasserman
Faculty Publications
This essay examines three cases from the Supreme Court’s October Term 2013 addressing the standards for summary judgment. In one case, the Court affirmed summary judgment against a civil-rights plaintiff, in a continued erroneous over-reliance on the certainty of video evidence. In two other cases, the Court rejected the grant of summary judgment against civil-rights plaintiffs, arguably for the first time in quite a while. This essay unpacks the substance and procedure underlying all three decisions and considers the effect of the three cases and what signals they send to lower courts and litigants about the proper approach to summary …
The Fourth Era Of American Civil Procedure, Thomas O. Main, Stephen N. Subrin
The Fourth Era Of American Civil Procedure, Thomas O. Main, Stephen N. Subrin
Scholarly Works
Every contemporary American lawyer who has engaged in litigation is familiar with the now fifty-four-volume treatise, Federal Practice and Procedure. Both of that treatise’s named authors, Charles Alan Wright and Arthur Miller, have mourned the death of a Federal Rules regime that they spent much of their professional lives explaining and often celebrating. Wright shared a sense of gloom about federal procedure that he compared to the setting before World War I. Miller has also published a series of articles that chronicled his grief.
We agree that something has fundamentally changed. In fact, we believe that we are in …
Managerial Judging And Substantive Law, Tobias Barrington Wolff
Managerial Judging And Substantive Law, Tobias Barrington Wolff
All Faculty Scholarship
The figure of the proactive jurist, involved in case management from the outset of the litigation and attentive throughout the proceedings to the impact of her decisions on settlement dynamics -- a managerial judge -- has displaced the passive umpire as the dominant paradigm in the federal district courts. Thus far, discussions of managerial judging have focused primarily upon values endogenous to the practice of judging. Procedural scholarship has paid little attention to the impact of the underlying substantive law on the parameters and conduct of complex proceedings.
In this Article, I examine the interface between substantive law and managerial …
Whose Regulatory Interests? Outsourcing The Treaty Function, Stephen B. Burbank
Whose Regulatory Interests? Outsourcing The Treaty Function, Stephen B. Burbank
All Faculty Scholarship
In this article I describe the status quo in the area of foreign judgment recognition, with attention to the tension between domestic interests and international cooperation. Precisely because the future of the status quo is in doubt, I then consider current proposals for change, particularly the effort to implement the Hague Choice of Court Convention in the United States. Prominent among the normative questions raised by my account is whose interests, in addition to the litigants’ interests, are at stake – those of the United States, those of the several states, or those of interest groups waving a federal or …
Information Lost And Found, Frederic M. Bloom
Information Lost And Found, Frederic M. Bloom
Publications
At the core of every lawsuit is a mix of information-revealing documents that chronicle a party's malfeasance, guarded memos that outline a lawyer's trial strategy, fading memories that recall a jury's key mistakes. Yet the law's system for managing that information is still poorly understood. This Article makes new and better sense of that system. It begins with an original examination of five pieces of our civil information architecture--evidence tampering rules, automatic disclosure requirements, work product doctrine, peremptory challenge law, and bans on juror testimony--and compiles a novel study of how those doctrines intersect and overlap. It then fits these …
A Tea Party At The Hague?, Stephen B. Burbank
A Tea Party At The Hague?, Stephen B. Burbank
All Faculty Scholarship
In this article, I consider the prospects for and impediments to judicial cooperation with the United States. I do so by describing a personal journey that began more than twenty years ago when I first taught and wrote about international civil litigation. An important part of my journey has involved studying the role that the United States has played, and can usefully play, in fostering judicial cooperation, including through judgment recognition and enforcement. The journey continues but, today, finds me a weary traveler, more worried than ever about the politics and practice of international procedural lawmaking in the United States. …
Asymmetrical Jurisdiction, Matthew I. Hall
Asymmetrical Jurisdiction, Matthew I. Hall
Scholarly Works
Most people — and most lawyers — would assume that the U.S. Supreme Court has jurisdiction to review any determination of federal law by an inferior court, whether state or federal. And there was a time when it was so. But the Court’s recent justiciability decisions have created a perplexing jurisdictional gap — a set of cases in which state court determinations of federal law are immune from the Supreme Court’s appellate jurisdiction. The Court has thus surrendered a portion of its supremacy and thereby undermined the policies that underlie its appellate jurisdiction.
In an effort to address this problem, …
Civil Rights And Systemic Wrongs, Melissa Hart
Civil Rights And Systemic Wrongs, Melissa Hart
Publications
Systemic employment discrimination is a structural, social harm whose victims include not only those who can be specifically identified, but also many who cannot. Pattern and practice claims in employment litigation are an essential tool for challenging this structural harm. Unfortunately, the Supreme Court's decision in Wal-Mart v. Dukes brushes aside the systemic nature of the plaintiffs' claims, making both theoretical and doctrinal mistakes in its application of the procedural and substantive law applicable in employment discrimination class action litigation. The most troubling part of the Court's opinion--its rejection of statistical modeling for remedial determinations--has received little attention. This article …
The Procedure Of Election Law In Federal Courts, Joshua A. Douglas
The Procedure Of Election Law In Federal Courts, Joshua A. Douglas
Law Faculty Scholarly Articles
Election law scholars have paid scant attention to the different procedures by which courts decide election law cases. Further, there has been little exploration of the reasons why certain processes exist, and there is even less discussion of which procedures are best for election law cases. One commentator has advocated for state legislatures to define clearly certain procedural matters for election contests, including: “(1) who can be a contestant; (2) what standard of evidence to require; and (3) how to expedite contests.” But there are more fundamental and foundational questions: What goals are we trying to achieve in enacting special …
Deciding When To Decide - Appellate Procedure And Legal Change, Aaron-Andrew P. Bruhl
Deciding When To Decide - Appellate Procedure And Legal Change, Aaron-Andrew P. Bruhl
Popular Media
No abstract provided.
Resolving Cases On The Merits, Jay Tidmarsh
Resolving Cases On The Merits, Jay Tidmarsh
Journal Articles
Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.
Process, People, Power And Policy: Empirical Studies Of Civil Procedure And Courts, Carrie Menkel-Meadow, Bryant Garth
Process, People, Power And Policy: Empirical Studies Of Civil Procedure And Courts, Carrie Menkel-Meadow, Bryant Garth
Georgetown Law Faculty Publications and Other Works
This review essay, by Professor Carrie Menkel-Meadow and Dean Bryant Garth, reports on the history and deployment of empirical studies of civil procedure rules, court policies, and legal developments for reforms of court procedures and practices in both the United States and England and Wales. It traces the influence of particular individuals (e.g., Charles Clark in the United States, and Harry Woolf in England) in the use of empirical studies of litigation patterns and court rules to effectuate legal reforms. The essay reviews some particularly contentious issues over time, such as whether there is/was too much or too little litigation, …
The Death Of The American Trial, Robert P. Burns
The Death Of The American Trial, Robert P. Burns
Faculty Working Papers
This short essay is a summary of my assessment of the meaning of the "vanishing trial" phenomenon. It addresses the obvious question: "So what?" It first briefly reviews the evidence of the trial's decline. It then sets out the steps necessary to understand the political and social signficance of our vastly reducing the trial's importance among our modes of social ordering. The essay serves as the Introduction to a book, The Death of the American Trial, soon to be published by the University of Chicago Press.
Peace And Justice: Notes On The Evolution And Purposes Of Legal Processes, Carrie Menkel-Meadow
Peace And Justice: Notes On The Evolution And Purposes Of Legal Processes, Carrie Menkel-Meadow
Georgetown Law Faculty Lectures and Appearances
This text of the inaugural lecture for the A.B. Chettle, Jr. Chair in Dispute Resolution and Civil Procedure at Georgetown University Law Center presents an intellectual outline (theory and practice) for a house of justice built on the foundations of Lon Fuller, the Legal Process school, Jurgen Habermas' and Stuart Hampshire's social philosophy about democratic processes, the floors of comparative processes, drawing on the work of political theorist Jon Elster and empirical work on legal and political processes and the ceilings of new processes, like consensus building fora, truth and reconciliation commissions and other combinations of legal and political processes. …
Unconstitutional Courses, Frederic M. Bloom
Unconstitutional Courses, Frederic M. Bloom
Publications
By now, we almost expect Congress to fail. Nearly every time the federal courts announce a controversial decision, Congress issues a call to rein in "runaway" federal judges. And nearly every time Congress makes a "jurisdiction-stripping" threat, it comes to nothing.
But if Congress's threats possess little fire, we have still been distracted by their smoke. This Article argues that Congress's noisy calls have obscured another potent threat to the "judicial Power": the Supreme Court itself. On occasion, this Article asserts, the Court reshapes and abuses the "judicial Power"--not through bold pronouncements or obvious doctrinal revisions, but through something more …
A Survival Guide For Small Businesses: Avoiding The Pitfalls In International Dispute Resolution, Susan Franck
A Survival Guide For Small Businesses: Avoiding The Pitfalls In International Dispute Resolution, Susan Franck
Articles in Law Reviews & Other Academic Journals
In the past decade, the number of small, entrepreneurial businesses participating in the global economy has tripled. With this increase comes a rise in the number of cross-border commercial disputes. The unwary small business, not familiar with international transactions, may commit errors that adversely affect their ability to do and stay in business. This article focuses on analyzing which methods small businesses should use in constructing their dispute resolution provisions and how to avoid errors in drafting and negotiation.
6th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2004, Department Of Attorney General, State Of Rhode Island
6th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2004, Department Of Attorney General, State Of Rhode Island
School of Law Conferences, Lectures & Events
No abstract provided.
Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg
Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg
Faculty Journal Articles and Book Chapters
People thinking about contractual arbitration clauses usually envision the resulting disputes as contractual in nature. However, there is also a group of cases in which the clauses are used to compel arbitration of personal injury claims. This article examines those cases, including the impact of the Federal Arbitration Act on their enforcement. Next, the article considers the ways in which these pre-dispute, mandatory arbitration clauses can disturb the traditional values of procedural justice, contractual fairness, and the enforcement of tort-based duties. Finally, the article proposes changes in the law of arbitration and evaluates whether such changes are politically feasible.
3rd Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2001, Department Of The Attorney General, State Of Rhode Island
3rd Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2001, Department Of The Attorney General, State Of Rhode Island
School of Law Conferences, Lectures & Events
No abstract provided.
International Judicial Assistance, Christopher L. Blakesley
International Judicial Assistance, Christopher L. Blakesley
Scholarly Works
The general or even specialized practitioner faces serious difficulties as the world shrinks and the practice of law frequently transcends international boundaries. In the civil and commercial arena, issues of discovery and service of documents abroad, others relating to judicial assistance from foreign courts, available to American courts or individual litigants, and assistance available from American courts for foreign governments and individual litigants, can be mindboggling. In an age where transnational litigation (that is, domestic litigation that touches upon one or more foreign jurisdictions) is rapidly increasing, counsel could be guilty of malpractice if counsel takes action abroad that proves …
Mass And Repetitive Litigation In The Federal Courts, Edward H. Cooper
Mass And Repetitive Litigation In The Federal Courts, Edward H. Cooper
Articles
The topic of "Mass and Repetitive Litigation in the Federal Courts" is even more vast and unwieldy than the complex litigations it brings to mind. The implicit assignment to address the topic by contemplating the events that may occur over the next century is still more daunting. One hundred years bring untellable changes to all of our social and political institutions, judicial and otherwise. Rather than attempt to meet the challenge by uttering bold prophecies of the circumstances that will confront our successors of the future, I will follow an easier course. This paper will select a few illustrations of …