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Full-Text Articles in Law

Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley Oct 2019

Making Rule 23 Ideal: Using A Multifactor Test To Evaluate The Admissibility Of Evidence At Class Certification, Cianan M. Lesley

Michigan Law Review

Circuit courts are split on whether and to what extent the Daubert standard should apply at class certification. Potential plaintiffs believe that application of Daubert would make it nearly impossible to obtain class certification. For potential defendants, the application of the standard is an important way to ensure that the certification process is fair. This Note examines the incentives underlying the push to apply the Daubert standard at class certification and the benefits and drawbacks associated with that proposal. It proposes a solution that balances the concerns of both plaintiffs and defendants by focusing on three factors: the obstacles to ...


Neither Limited Nor Simplified: A Proposal For Reform Of Illinois Supreme Court Rule 222(B), Michael S. Smith Dec 2018

Neither Limited Nor Simplified: A Proposal For Reform Of Illinois Supreme Court Rule 222(B), Michael S. Smith

Michigan Law Review

A limited and simplified discovery system should broaden access to courts, resolve disputes quickly, and expedite relief to injured parties. It should not incentivize procedural gamesmanship or increase the system’s complexity. Regrettably, Illinois’s “limited and simplified” discovery system does both. The initiation procedure for the simplified system, Rule 222(b), creates procedural traps and perverse incentives for both plaintiffs and defendants, and conflicting appellate interpretations of the Rule intensify the problem. This Note examines the flaws underlying the current simplified discovery scheme and argues for reform. It examines simplified discovery schemes in other states to recommend a new ...


An Implausible Standard For Affirmative Defenses, Stephen Mayer Nov 2013

An Implausible Standard For Affirmative Defenses, Stephen Mayer

Michigan Law Review

In the wake of Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, the federal district courts split over whether to apply Twombly’s plausibility standard to the pleading of affirmative defenses. Initially, a majority of district courts extended Twombly to defense pleadings, but recently the courts that have declined to extend the plausibility standard have gained majority status. This Note provides a comprehensive analysis of each side of the plausibility split, identifying several hidden assumptions motivating the district courts’ decisions. Drawing from its analysis of the two opposing positions, this Note responds to the courts that have applied plausibility ...


Federal Discovery Stays, Gideon Mark Feb 2012

Federal Discovery Stays, Gideon Mark

University of Michigan Journal of Law Reform

In federal civil litigation, unless a discretionary stay is granted, discovery often proceeds while motions to dismiss are pending. Plaintiffs with non-meritorious cases can compel defendants to spend massively on electronic discovery before courts ever rule on such motions. Defendants who are unable or unwilling to incur the huge up-front expense of electronic discovery may be forced to settle non-meritorious claims. To address multiple electronic discovery issues, Congress amended the Federal Rules of Civil Procedure in 2006 and the Federal Rules of Evidence in 2008. However, the amendments failed to significantly reduce costs and failed to address the critical issue ...


Spoliation Of Electronic Evidence: Sanctions Versus Advocacy, Charles W. Adams Jan 2011

Spoliation Of Electronic Evidence: Sanctions Versus Advocacy, Charles W. Adams

Michigan Telecommunications & Technology Law Review

This Article proposes that courts should refrain from imposing adverse inference jury instructions as sanctions for the spoliation of evidence. This proposal bears some similarity to the approach taken twenty years ago by the 1993 amendments to Rule 11, which constrained courts' ability to sanction. Instead of imposing an adverse jury instruction as a sanction for spoliation of evidence, courts should allow evidence of spoliation to be admitted at trial if a reasonable jury could find that spoliation had occurred and if the spoliation was relevant to a material issue. If a court allows the introduction of evidence of spoliation ...


The French Huissier As A Model For U.S. Civil Procedure Reform, Robert W. Emerson Jul 2010

The French Huissier As A Model For U.S. Civil Procedure Reform, Robert W. Emerson

University of Michigan Journal of Law Reform

Huissiers de justice serve multiple roles in the French legal system. One is that of a court officer who compiles dossiers (reports). In that role, the huissier is d'audiencier (literally translated as "hearing" or "assisting") and works directly for the court system itself.

The huissier's report remains alien to the American lawyer, who is steeped in notions of procedure and "testimonialism" and in principles of fairness which appear ancient, but are rather modern dissimulations of law and equity's rich history in the American tradition. An important aspect of most legal processes, the collection of data in preparation ...


New Pleading, New Discovery, Scott Dodson Jan 2010

New Pleading, New Discovery, Scott Dodson

Michigan Law Review

Pleading in federal court has a new narrative. The old narrative was one of notice, with the goal of broad access to the civil justice system. New Pleading, after the landmark Supreme Court cases of Twombly and Iqbal, is focused on factual sufficiency, with the purpose of screening out meritless cases that otherwise might impose discovery costs on defendants. The problem with New Pleading is that factual insufficiency often is a poor proxy for meritlessness. Some plaintifs lack sufficient factual knowledge of the elements of their claims not because the claims lack merit but because the information they need is ...


Corporate Cooperation Through Cost-Sharing, Nicola Faith Sharpe Jan 2009

Corporate Cooperation Through Cost-Sharing, Nicola Faith Sharpe

Michigan Telecommunications & Technology Law Review

Applying a game-theoretic approach based on the classic prisoners' dilemma provides valuable insights into corporate managers' decision-making incentives under existing discovery rules. It demonstrates that the fee structure imposed by current discovery rules leads to inefficiency and motivates corporate litigants on either side of a controversy to employ abusive discovery practices, although each party would benefit from cooperation. Using this framework, this Article shows how a cost-sharing regime can motivate litigants to engage in cooperative discovery and, as a consequence, facilitate more efficient and less abusive discovery practices. To date, scholars, who have posited that cooperative behavior in the discovery ...


The E.U. Leniency Program And U.S. Civil Discovery Rules: A Fraternal Fight?, Roberto Grasso Jan 2008

The E.U. Leniency Program And U.S. Civil Discovery Rules: A Fraternal Fight?, Roberto Grasso

Michigan Journal of International Law

This Note provides a European perspective on the issues raised by In re Rubber Chemicals Antitrust Litigation (Rubber Chemicals), and expresses concern regarding the inconsistent approach taken by U.S. courts to the discoverability of the Leniency submissions. This Note also warns that this inconsistency may have a chilling effect on participation in the E.U. Leniency Program and may thus impede enforcement of European anti-cartel law.


Access To Information, Access To Justice: The Role Of Presuit Investigatory Discovery, Lonny Sheinkopf Hoffman Dec 2007

Access To Information, Access To Justice: The Role Of Presuit Investigatory Discovery, Lonny Sheinkopf Hoffman

University of Michigan Journal of Law Reform

What is the relationship between access to information and access to justice? Private parties obviously have many publicly available points of access to the information they seek in order to file a lawsuit. Lawyers can talk to their clients and other willing witnesses. Documents can be gathered. Specific statutes may sometimes permit information to be obtained before a formal lawsuit is brought. On other occasions, however, information needed or desired will lie solely within the exclusive knowledge and control of another The ability of private parties to compel the production of information, documents, or testimony before litigation rarely has been ...


Electronic Discovery Sanctions In The Twenty-First Century, Shira A. Scheindlin, Kachana Wangkeo Oct 2004

Electronic Discovery Sanctions In The Twenty-First Century, Shira A. Scheindlin, Kachana Wangkeo

Michigan Telecommunications & Technology Law Review

At the federal level, the Civil Rules Advisory Committee has responded to the "unique and necessary feature of computer systems--the automatic recycling, overwriting, and alteration of electronically stored information"--with a proposed amendment to Rule 37. The proposed Rule 37(f) would shield litigants from sanctions for the destruction of electronic data if the party "took reasonable steps to preserve the information after it knew or should have known the information was discoverable in the action" and "the failure resulted from the loss of the information because of the routine operation of the party's electronic information system." The safe ...


The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein Jan 2000

The Secrecy Interest In Contract Law, Omri Ben-Shahar, Lisa Bernstein

Articles

A long and distinguished line of law-and-economics articles has established that in many circumstances fully compensatory expectation damages are a desirable remedy for breach of contract because they induce both efficient performance and efficient breach. The expectation measure, which seeks to put the breached-against party in the position she would have been in had the contract been performed, has, therefore, rightly been chosen as the dominant contract default rule. It does a far better job of regulating breach-or-perform incentives than its leading competitors-the restitution measure, the reliance measure, and specific performance. This Essay does not directly take issue with the ...


Third-Party Modification Of Protective Orders Under Rule 26©, Patrick S. Kim Dec 1995

Third-Party Modification Of Protective Orders Under Rule 26©, Patrick S. Kim

Michigan Law Review

This Note argues that similarly situated litigants always should be given access to protected discovered materials, while nonlitigants should gain access to protected materials only in exceptional circumstances. This approach effectively balances the privacy and property interests of the original parties and the intervening parties with the interests of adjudicative efficiency. Part I establishes that there is no general public right of access to civil discovery and that courts should disregard such purported rights when considering whether to modify a protective order. Part II identifies three interests that courts should weigh when considering whether to modify a protective order: the ...


Discovery Cost Allocation: Comment On Cooter And Rubinfeld, Edward H. Cooper Jan 1994

Discovery Cost Allocation: Comment On Cooter And Rubinfeld, Edward H. Cooper

Articles

Discovery practice continues to be the single most troubling element of contemporary procedure. To be sure, the system seems to work well in a high proportion of all federal cases. The proportion may seem astonishingly high in relation to the amount of attention devoted to discovery. The discovery problems that occur in a relatively small proportion of the federal caseload, however, impose serious burdens on the parties and the court system. Every proposal that addresses discovery "abuse" deserves serious attention. These comments focus on the discovery abuse portion of the paper by Cooter and Rubinfeld. Questions are posed that may ...


Clinical Realism: Simulated Hearings Based On Actual Events In Students' Lives, Samuel R. Gross Jan 1990

Clinical Realism: Simulated Hearings Based On Actual Events In Students' Lives, Samuel R. Gross

Articles

This essay describes a novel clinical format, a simulation course that is based on students' testimony about actual events in their own lives. The two main purposes of the course, however, are not novel. First, I aim to teach the students to be effective trial lawyers by instructing them in the techniques of direct examination and cross-examination and by making them sensitive to the roles of the other courtroom players: the witness, the judge, and the jury. Second, I hope to encourage the students to think about the social and ethical consequences of our method of trying lawsuits.


The Hague Convention On Taking Evidence Abroad: Conflict Over Pretrial Discovery, Margaret T. Burns Jan 1985

The Hague Convention On Taking Evidence Abroad: Conflict Over Pretrial Discovery, Margaret T. Burns

Michigan Journal of International Law

This note asserts that the Hague Convention is not the exclusive vehicle available to U.S. litigants for taking evidence abroad. It argues that in certain circumstances, U.S. courts should allow litigants to use the more liberal methods of the Federal Rules when seeking evidence from party litigants in other signatory nations.


Interview Notes Of Government Agents Under The Jencks Act, Michigan Law Review Aug 1982

Interview Notes Of Government Agents Under The Jencks Act, Michigan Law Review

Michigan Law Review

Most courts that have considered the issue have concluded that the Jencks Act does not require the government to retain and produce rough interview notes. This Note examines the language and purpose of the Act to determine whether interview notes should be considered Jencks Act statements. Part I examines the policy underlying the Jencks Act and argues that the majority position sanctioning pre-trial destruction of interview notes conflicts with these statutory purposes. Part II discusses the statutory language and argues that the status of the witness as a government agent or a private individual determines the applicable section of the ...


Light-Hearted Thoughts About Discovery Reform, John W. Reed Jan 1982

Light-Hearted Thoughts About Discovery Reform, John W. Reed

Other Publications

I am delighted to be here among friends from various settings and associations over the years. Having been unable to arrive until late last evening, I am in a poor position to offer useful commentary on what has been said here. But no matter-that is not my assignment. You have heard enough words of wisdom for one weekend. My pleasant assignment is to offer some "light-hearted" comments on discovery reform. I hope they do not prove to be "light-headed" as well.


Disclosure Of Grand Jury Materials Under Clayton Act Section 4f(B), Michigan Law Review May 1981

Disclosure Of Grand Jury Materials Under Clayton Act Section 4f(B), Michigan Law Review

Michigan Law Review

This Note analyzes the controversy and concludes that the latter courts are correct: Congress never intended to abrogate or modify rule 6(e)'s "particularized need" standard when it enacted section4F(b). Part I discusses whether Congress intended section 4F(b) to require the Attorney General to disclose grand jury materials to state attorneys general upon request, thereby abrogating rule 6(e)'s explicit prohibition against such disclosure. Part II examines the statutory language and legislative history of section). 4F(b) to determine whether Congress intended section 4F(b) to modify rule 6(e)'s "particularized need" standard. Finally, Part ...


A Proposed Amendment To Rule 26(B)(4)(B): The Expert Twice Retained, Andrew J. Miller Apr 1979

A Proposed Amendment To Rule 26(B)(4)(B): The Expert Twice Retained, Andrew J. Miller

University of Michigan Journal of Law Reform

This article will focus on whether the hiring of the free agent as a non-trial expert, in order to conceal information from other parties to the litigation, is in keeping with the underlying goals and values of present discovery practice. Part I of this note discusses the discoverability of experts in general, then examines the various rationales underlying the so-called unfairness doctrine supporting the trial/non-trial expert distinction. Part II presents the case for divergent treatment of the free agent and the regularly retained expert. Subpart A of that section will explain the lack of judicial scrutiny in this area ...


Discovery And Presentation Of Evidence In Adversary And Nonadversary Proceedings, E. Allan Lind, John Thibaut, Laurens Walker May 1973

Discovery And Presentation Of Evidence In Adversary And Nonadversary Proceedings, E. Allan Lind, John Thibaut, Laurens Walker

Michigan Law Review

In order to evaluate fully the advantage claimed for the adversary model we sought to add a third element that would test the hypothesis under a variety of conditions. The degree to which the evidence discovered in a case favors one party at the expense of another appeared to meet this criterion. This fact-distribution element is a pervasive condition of legal conflict resolution that, intuition suggests, may significantly influence information search and transmission. Further, this variable could be easily and accurately controlled by regulating the flow of favorable information acquired by the subjects during the experiment.

The remainder of this ...