Law Commons^™

Jackson V. Birmingham Board Of Education And The Expansion Of Title Ix's Judicially Implied Private Right Of Action, Darl H. Champion Jr

Mercer Law Review

In Jackson v. Birmingham Board of Education, the United States Supreme Court departed from its current trend of hostility toward implying rights of action in federal statutes. In Jackson the Court held that there is an implied private right of action for retaliation under Title IX when a whistleblower is retaliated against for complaining about sex discrimination. As a result, the Court increased the protections to employees and students of funding recipients who report instances of sex discrimination.

Symposium On Frcp 68: Lessons From New Jersey, Albert Yoon

Mercer Law Review

I would like to begin by thanking the Mercer Law Review for the opportunity to participate in its Federal Rules of Civil Procedure 68 Symposium. Federal Rule of Civil Procedure 681 ("Rule 68") is an important topic, and it is an honor to discuss the rule with such distinguished attorneys, jurists, and fellow academics. The reach of Rule 68 is certainly wide, applying to all federal civil litigation. The effect of Rule 68, however, is small: most scholars and practitioners agree it has little bearing on how cases are litigated. If Rule 68, and offer-ofjudgment rules generally, are to have …

Foreward: Of Offers Not (Frequently) Made And (Rarely) Accepted: The Mystery Of Federal Rule 68, Harold S. Lewis Jr., Thomas A. Eaton

Mercer Law Review

This Symposium brings together, from around the nation, eight civil rights and employment discrimination lawyers, four legal academics, and an eminent federal judge, all with deep experience and interest in the promise and pitfalls of Federal Rule of Civil Procedure 68. We gather to unravel a mystery. In an oversimplified nutshell, Rule 68, as construed, enables the defendants to say to the plaintiffs in employment discrimination and civil rights cases: "If you don't beat my offer at trial, you forfeit your right to any future statutory attorney fees." Rule 68 would, therefore, appear to give the defendants a significant incentive …

Sausage-Making, Pigs' Ears, And Congressional Expansions Of Federal Jurisdiction: Exxon Mobil V. Allapattah And Its Lessons For The Class Action Fairness Act, Adam N. Steinman

Faculty Scholarship

The year 2005 witnessed two watershed developments in federal jurisdiction: the U.S. Supreme Court's decision in Exxon Mobil Corp. v. Allapattah Services, Inc. and the enactment of the Class Action Fairness Act (CAFA). Allapattah and CAFA raise the same fundamental question: how should courts interpret a statute whose text would expand federal jurisdiction far beyond what Congress apparently intended? In Allapattah, the Court confronted this question in resolving an aspect of the supplemental jurisdiction statute that had deeply divided both the judiciary and academia. CAFA's expansion of federal jurisdiction over class actions will require courts to struggle with this question …

Jurisdiction To Adjudicate: A Revised Analysis, A. Benjamin Spencer

Faculty Publications

Personal jurisdiction doctrine as articulated by the Supreme Court is in disarray. As a constitutional doctrine whose contours remain imprecise, the law of personal jurisdiction has generated confusion, unpredictability, and extensive satellite litigation over what should be an uncomplicated preliminary issue. Many commentators have long lamented these defects, making suggestions for how the doctrine could be improved. Although many of these proposals have had much to offer, they generally have failed to articulate (or adequately justify or explain) a simple and sound approach to jurisdiction that the Supreme Court can embrace. This Article revises the law of personal jurisdiction by …

Exorbitant Jurisdiction, Kevin M. Clermont, John R.B. Palmer

Cornell Law Faculty Publications

Exorbitant territorial jurisdiction in civil cases comprises those classes of jurisdiction, although exercised validly under a country's rules, that nonetheless are unfair to the defendant because of a lack of significant connection between the sovereign and either the parties or the dispute. The United States, France, and most of the rest of the world exercise a good deal of exorbitant jurisdiction so defined. In the United States, an emphasis on power derived from territoriality has led to jurisdictional restraint in some respects, but has also allowed general jurisdiction based solely on transient physical presence, the attachment of property, or extensive …

Invisible Settlements, Invisible Discrimination, Minna J. Kotkin

Faculty Scholarship

No abstract provided.

South Dakota Tribal Court Handbook (Revised Edition), Frank Pommersheim

Frank Pommersheim

The South Dakota Tribal Court Handbook is designed to provide an informative and ready resource for the practicing bar in South Dakota as well as for the tribal and statewide community at large. The overarching objective of this effort is to facilitate ongoing communication, understanding, and respect for tribal courts and tribal court personnel.

Subclassing, Scott Dodson

Faculty Publications

This Article is the first to take a hard look at Federal Rule of Civil Procedure 23(c)(4)(B), an oft-slighted part of the class action scheme that permits a court to create subclasses "when appropriate." Despite its tautologically unhelpful text, no other court or commentator has undertaken a comprehensive analysis of this provision. The time to do so is certainly now. As class actions grow bigger, plaintiffs seek new ways to meet Rule 23 "s certification requirements. Just in the last few years, plaintiffs have turned to subclassing's sister provision, Rule 23(c)(4)(A), which has consequently received a flurry of commentary from …

Summary Of Mccrary V. Bianco, 122 Nev. Adv. Op. 10, Eunice Kasiske

Nevada Supreme Court Summaries

Thomas and Rebecca McCrary (“McCrary”) appealed from a post-verdict district court order awarding attorney fees based upon the cost shifting provisions of NRCP 68 and NRS 17.115. Dominic Bianco (“Bianco”) cross-appealed from the denial of its motion for partial satisfaction of judgment. McCrary unsuccessfully argued that the district court erred in its failure to consider pre-offer attorney fees and costs as part of its determination of the total judgment for cost-shifting purposes. McCrary successfully argued that the district court erred in not including pre-offer prejudgment interest in its comparison between the total amount awarded and the offer of judgment, for …

Summary Of International Game Tech. V. Dist. Ct., 122 Nev. Adv. Op. No. 13, Krystal Gallagher

Nevada Supreme Court Summaries

Petitioner, Nevada’s Attorney General, appeals from the district courts’ refusals to dismiss actions brought under Nevada’s False Claims Act (“FCA”) by respondents, James McAndrews and Beeler, Schad & Diamond, P.C. Nevada permits individuals to become private attorneys general, which grants individuals the right to sue on behalf of the state. This individual is known as a quitam plaintiff. After filing an action, the quitam plaintiff must send the Attorney General a copy of the complaint and a written disclosure of all material information, and then the complaint is sealed. The complaint remains sealed and the defendants are not served until …

An Examination Of The Gacaca Tribunals In Rwanda As A Practical Means Of Delivering Mass Justice, Myra Oscar Sabongi

Archived Theses and Dissertations

[abstract not provided]

Civil Contempt Confinement And The Bankruptcy Abuse Prevention And Consumer Protection Act Of 2005: An Examination Of Debtor Incarceration In The Modern Age, Jayne S. Ressler

Faculty Scholarship

No abstract provided.

Legal Indeterminacy Made In America: American Legal Methods And The Rule Of Law, James Maxeiner

All Faculty Scholarship

The thesis of this Article is that the indeterminacy that plagues American law is "Made in America." It is not inherent in law. Rather, it is a product of specific choices of legal methods and of legal structures made in the American legal system.

E-Commerce: Legal Issues Of The Online Retailer In Virginia, Jonathan D. Frieden, Sean Patrick Roche

Richmond Journal of Law & Technology

The popularity and growth of online retailing, now in its tenth year, has shattered experts’ expectations. “Online sales in the United States grew twenty-four percent last year, to about $90 billion, and online retailing now accounts for nearly five percent of all retail sales.”

Chapter 631: Increasing The Effectiveness Of Domestic Violence Protective Orders, Kerry Campbell

McGeorge Law Review

No abstract provided.

Limited Liability Company Citizenship: Reconsidering An Illogical And Inconsistent Choice, Debra R. Cohen

Journal Articles

The trend in diversity actions in Federal Court is to rigidly apply the formalistic rules for determining citizenship (aggregate or entity) to deem limited liability companies (LLCs) to have aggregate or "partnership" citizenship. While the approach is designed to reduce the federal docket; there is no evidence that it works. More importantly, this result-oriented approach is not based on well-reasoned analysis. This approach creates several illogical and inconsistent results. It bears no reflection on modern business realities, it undermines well established principles of law, and it undercuts the purpose for which diversity jurisdiction was established, This article suggests that, just …

A New World Of Discovery: The Ramifications Of Two Recent Federal Courts Decisions Granting Judicial Assistance To Arbitral Tribunals, Anna Conley

Anna Conley

No abstract provided.

Jurisdiction And Discretion In Hybrid Law Cases, John F. Preis

John F. Preis

An enduring debate in the federal courts field is which branch of the federal government has the power to control federal jurisdiction. While some commentators and judges assert that the judiciary has the implicit authority to refine the boundaries of its jurisdiction, others argue that Article III vests that authority with Congress only and judicial modification of jurisdiction is illegitimate. In focusing almost entirely on the constitutional legitimacy of the question, this debate has overlooked an important consideration. That is, even if the judiciary may legitimately wield discretion in setting its jurisdiction, is such discretion functionally appropriate?

This Article argues …

Tennessee Participates In Modern Trend Towards Shame Sentencing, Andrea Hunwick

Public Interest Law Reporter

No abstract provided.

The Right To Counsel On Appeal: Civil Douglas, 15 Temp. Pol. & Civ. Rts. L. Rev. 603 (2006), Steven D. Schwinn

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Merger Of Common-Law And Equity Pleading In Virginia, William Hamilton Bryson

Law Faculty Publications

This article describes the separation of common law and equity in Virginia leading up to the 2006 merger of common law and equity pleading and the problems that remain to be solved by the courts.

The Preservation Obligation: Regulating And Sanctioning Pre-Litigation Spoliation In Federal Court, A. Benjamin Spencer

Scholarly Articles

The issue of discovery misconduct, specifically as it pertains to the pre-litigation duty to preserve and sanctions for spoliation, has garnered much attention in the wake of decisions by two prominent jurists whose voices carry great weight in this area. In Pension Committee of University of Montreal Pension Plan v. Bank of America Securities, Judge Shira Scheindlin - of the Zubulake e-discovery cases - penned a scholarly and thorough opinion setting forth her views regarding the triggering of the duty to preserve potentially relevant information pending litigation and the standards for determining the appropriate sanctions for various breaches of that …

Terminating Calder: "Effects" Based Jurisdiction In The Ninth Circuit After Schwarzenegger V. Fred Martin Motor Co., A. Benjamin Spencer

Scholarly Articles

None available.

Celotex Trilogy Revisited: How Misapplication Of The Federal Summary Judgment Standard Is Undermining The Seventh Amendment Right To A Jury Trial, David H. Simmons, Stephen J. Jacobs, Daniel J. O'Malley, Richard H. Tami

Florida A & M University Law Review

No abstract provided.

A Teacher's Teacher, Lonnie T. Brown Jr.

Vanderbilt Journal of Transnational Law

Jackie Robinson once said, "A life is not important except in the impact it has on other lives." By that measure, Harold Maier has led an extraordinarily important life. I know that he has had a profound impact on innumerable students throughout his career and upon one in particular. I continue to learn because Professor Maier inspired me, and I teach others because of the wonderful example he set. Though he has now left the classroom, Professor Maier's legacy as a teacher will always endure through the countless minds he has awakened and lives he has touched.

The Hybrid Class Action As Judicial Spork: Managing Individual Rights In A Stew Of Common Wrong, 39 J. Marshall L. Rev. 231 (2006), Jon Romberg

UIC Law Review

No abstract provided.

In The Service Of Secrets: The U.S. Supreme Court Revisits Totten, 39 J. Marshall L. Rev. 475 (2006), Douglas Kash, Matthew Indrisano

UIC Law Review

No abstract provided.

Summary Of Koller V. State, 122 Nev. Adv. Op. 20, Amy S. Scarborough

Nevada Supreme Court Summaries

Appeal from a writ of prohibition granted by the Third Judicial District Court, State of Nevada.

Origin, Scope, And Irrevocability Of The Manifest Disregard Of The Law Doctrine: Second Circuit Views, Christian Turner, Joshua Ratner

Scholarly Works

After arbitration has occurred, parties may seek judicial enforcement of the arbitral award, converting the private determination into an enforceable judgment. Parties that did not prevail in the arbitration may, at the same time, seek to have the arbitral award vacated. This article concerns the doctrine that permits courts to vacate an arbitral award when the arbitrators “manifestly disregarded” the law, focusing on recent developments in the Second Circuit. Despite the exceedingly deferential scope of this doctrine, the Second Circuit has actually vacated a handful of arbitrations on grounds of manifest disregard, and the doctrine is routinely raised by litigants. …