Open Access. Powered by Scholars. Published by Universities.®
- Keyword
-
- Actions and defenses (10)
- United States (7)
- Class actions (Civil procedure) (6)
- Jurisdiction (6)
- Civil procedure (5)
-
- Complex litigation (4)
- Compromise (Law) (3)
- Due process of law (3)
- Federal government (3)
- Law--Interpretation and construction (3)
- State governments (3)
- Supreme Court (3)
- Administration of justice (2)
- Discovery (2)
- District courts (2)
- Drama (2)
- Fair trial (2)
- Jury (2)
- Parties to actions (2)
- Race discrimination (2)
- Securities (Law) (2)
- Securities fraud (2)
- Torts (2)
- United States. Congress (2)
- Abolitionists (1)
- Adaptability (Psychology) (1)
- Administrative agencies (1)
- Administrative procedure (1)
- American Bar Association (1)
- American Law Institute (1)
- Publication Year
Articles 1 - 30 of 51
Full-Text Articles in Law
Guidelines And Best Practices For Implementing The 2015 Discovery Amendments Concerning Proportionality (Third Edition), Bolch Judicial Institute
Guidelines And Best Practices For Implementing The 2015 Discovery Amendments Concerning Proportionality (Third Edition), Bolch Judicial Institute
Bolch Judicial Institute Publications
This third edition of The Guidelines and Best Practices to Achieve Proportionality was developed following a proportionality conference in June 2019, at which practitioners and judges reviewed and discussed the results of several studies evaluating the 2015 amendments to the Rules of Civil Procedure. A small working group convened by the Bolch Judicial Institute at Duke Law School, led by Judge Paul Grimm and including practitioners David Kessler and Jennie Anderson, gathered these insights, revised the guidelines, issued them for public comment, and made further revisions in light of the comments. As with any group product of this nature, where …
Unpacking Third-Party Standing, Curtis A. Bradley, Ernest A. Young
Unpacking Third-Party Standing, Curtis A. Bradley, Ernest A. Young
Faculty Scholarship
Third-party standing is relevant to a wide range of constitutional and statutory cases. The Supreme Court has said that, to assert such standing, a litigant must ordinarily have a close relationship with the right holder and the right holder must face obstacles to suing on their own behalf. Yet the Court does not seem to apply that test consistently, and commentators have long critiqued the third-party standing doctrine as incoherent. This Article argues that much of the doctrine’s perceived incoherence stems from the Supreme Court’s attempt to capture, in a single principle, disparate scenarios raising distinct problems of both theory …
State-Local Litigation Conflicts, Margaret H. Lemos
State-Local Litigation Conflicts, Margaret H. Lemos
Faculty Scholarship
No abstract provided.
Has Shoe Run Its Course?, David W. Ichel
Technology Assisted Review (Tar) Guidelines, Bolch Judicial Institute
Technology Assisted Review (Tar) Guidelines, Bolch Judicial Institute
Bolch Judicial Institute Publications
In the winter of 2016, more than 50 e-discovery experts volunteered to develop and draft guidelines providing guidance to the bench and bar on the use of technology assisted review (TAR).
This document explains the TAR process and offers “best practices,” which are intended to provide a protocol on whether and under what conditions TAR should be used. It provides a strong record and roadmap for the bench and bar, which explain and support the use of TAR in appropriate cases.
As with any group product of this nature, where some consensus must be reached, the drafters and other participants …
State Standing And Cooperative Federalism, Ernest A. Young
State Standing And Cooperative Federalism, Ernest A. Young
Faculty Scholarship
State lawsuits challenging federal policy generally encounter arguments that the states lack standing to sue, either under Article III’s “case or controversy” clause or under various prudential standing doctrines. These arguments have often taken novel forms—such as claims that states’ injuries are “self-inflicted” or offset by other benefits of federal policies—that have few precedents or analogs in the standing jurisprudence governing suits by private individuals. The United States has taken the position, in other words, that states should have special disabilities in filing lawsuits that would not apply to ordinary litigants. Likewise, prominent academics have argued that uniquely narrow standing …
Guidelines And Best Practices For Implementing The 2015 Discovery Amendments Concerning Proportionality (Second Edition), Bolch Judicial Institute
Guidelines And Best Practices For Implementing The 2015 Discovery Amendments Concerning Proportionality (Second Edition), Bolch Judicial Institute
Bolch Judicial Institute Publications
In November 2014, the Duke Law Judicial Studies Center, which became the Bolch Judicial Institute in 2018, held a conference on the discovery proportionality amendments with more than 70 practitioners and 15 federal judges. Drafting teams were subsequently formed, consisting of 32 practitioners, who worked for nine months on an initial draft set of GUIDELINES AND PRACTICES prepared by Judge Lee Rosenthal and Prof. Steven Gensler. The team’s work product, the GUIDELINES AND PRACTICES FOR IMPLEMENTING THE 2015 DISCOVERY AMENDMENTS TO ACHIEVE PROPORTIONALITY, was published in 99 Judicature, no. 3, Winter 2015, along with several related articles.
Most of …
Guidelines And Best Practices For Large And Mass-Tort Mdls (Second Edition), Bolch Judicial Institute
Guidelines And Best Practices For Large And Mass-Tort Mdls (Second Edition), Bolch Judicial Institute
Bolch Judicial Institute Publications
Mass-tort MDLs dominate the federal civil docket, yet they present enormous challenges to transferee judges assigned to manage them. There is little official guidance and no rules specific to the management of mass-tort MDLs, often requiring the transferee judge to develop procedures out of whole cloth.
Beginning in 2013, the Bolch Judicial Institute (then the Center for Judicial Studies) sought to address this issue through a series of annual bench-bar conferences. From these conferences came the Guidelines and Best Practices for Large and Mass-Tort MDLs document — now in its Second Edition — which is designed to help judges and …
A New Guard At The Courthouse Door: Corporate Personal Jurisdiction In Complex Litigation After The Supreme Court’S Decision Quartet, David W. Ichel
A New Guard At The Courthouse Door: Corporate Personal Jurisdiction In Complex Litigation After The Supreme Court’S Decision Quartet, David W. Ichel
Faculty Scholarship
In a quartet of recent decisions, the Supreme Court substantially reshaped the analysis of due process limits for a state's exercise of personal jurisdiction over corporations for the first time since its groundbreaking 1945 decision in International Shoe Co. v. Washington. The Court's decision quartet recasts the International Shoe continuum of corporate contacts for which it would be "reasonable" for the state to exercise jurisdiction based on "traditional notions of fair play and substantial justice" into a more rigid bright-line dichotomy between "general" and "specific" jurisdiction: for a state to exercise general (or all-purpose) jurisdiction over any suit, regardless of …
Brief Of Professors William Baude And Stephen E. Sachs As Amici Curiae In Support Of Neither Party, William Baude, Stephen E. Sachs
Brief Of Professors William Baude And Stephen E. Sachs As Amici Curiae In Support Of Neither Party, William Baude, Stephen E. Sachs
Faculty Scholarship
This case presents the question whether to overrule Nevada v. Hall, 440 U.S. 410 (1979). That question requires careful attention to the legal status of sovereign immunity and to the Constitution’s effect on it, which neither Hall nor either party has quite right. The Founders did not silently constitutionalize a common-law immunity, but neither did they leave each State wholly free to hale other States before its courts. While Hall’s holding was mostly right, other statements in Hall are likely quite wrong—yet this case is a poor vehicle for reconsidering them.
Hall correctly held that States lack a constitutional immunity …
State Public-Law Litigation In An Age Of Polarization, Margaret H. Lemos, Ernest A. Young
State Public-Law Litigation In An Age Of Polarization, Margaret H. Lemos, Ernest A. Young
Faculty Scholarship
Public-law litigation by state governments plays an increasingly prominent role in American governance. Although public lawsuits by state governments designed to challenge the validity or shape the content of national policy are not new, such suits have increased in number and salience over the last few decades — especially since the tobacco litigation of the late 1990s. Under the Obama and Trump Administrations, such suits have taken on a particularly partisan cast; “red” states have challenged the Affordable Care Act and President Obama’s immigration orders, for example, and “blue” states have challenged President Trump’s travel bans and attempts to roll …
Restructuring Sovereign Debt After Nml V. Argentina, Lee C. Buchheit, G. Mitu Gulati
Restructuring Sovereign Debt After Nml V. Argentina, Lee C. Buchheit, G. Mitu Gulati
Faculty Scholarship
The decade and a half of litigation that followed Argentina’s sovereign bond default in 2001 ended with a great disturbance in the Force. A new creditor weapon had been uncloaked: The prospect of a court injunction requiring the sovereign borrower to pay those creditors that decline to participate in a debt restructuring ratably with any payments made to those creditors that do provide the country with debt relief.
For the first time holdouts succeeded in fashioning a weapon that could be used to injure their erstwhile fellow bondholders, not just the sovereign issuer. Is the availability of this new weapon …
Three Models Of Adjudicative Representation, Margaret H. Lemos
Three Models Of Adjudicative Representation, Margaret H. Lemos
Faculty Scholarship
No abstract provided.
Corporate Darwinism: Disciplining Managers In A World With Weak Shareholder Litigation, James D. Cox, Randall S. Thomas
Corporate Darwinism: Disciplining Managers In A World With Weak Shareholder Litigation, James D. Cox, Randall S. Thomas
Faculty Scholarship
Because representative shareholder litigation has been constrained by numerous legal developments, the corporate governance system has developed new mechanisms as alternative means to address managerial agency costs. We posit that recent significant governance developments in the corporate world are the natural consequence of the ineffectiveness and inefficiency of shareholder suits to address certain genre of managerial agency costs. We thus argue that corporate governance responses evolve to fill voids caused by the inability of shareholder suits to monitor and discipline corporate managers.
We further claim that these new governance responses are themselves becoming stronger due in part to the rising …
The Mdl Vortex Revisited, Thomas B. Metzloff
The Mdl Vortex Revisited, Thomas B. Metzloff
Faculty Scholarship
No abstract provided.
When The Lawyer Screws Up: A Portrait Of Legal Malpractice Claims And Their Resolution, Herbert M. Kritzer, Neil Vidmar
When The Lawyer Screws Up: A Portrait Of Legal Malpractice Claims And Their Resolution, Herbert M. Kritzer, Neil Vidmar
Faculty Scholarship
No abstract provided.
Guidelines And Best Practices For Large And Mass Tort Mdls (First Edition), Duke Law School Center For Judicial Studies
Guidelines And Best Practices For Large And Mass Tort Mdls (First Edition), Duke Law School Center For Judicial Studies
Bolch Judicial Institute Publications
Mass-tort MDLs dominate the federal civil docket, yet they present enormous challenges to transferee judges assigned to manage them. There is little official guidance and no rules specific to the management of mass-tort MDLs, often requiring the transferee judge to develop procedures out of whole cloth.
Beginning in 2013, the Bolch Judicial Institute (then the Center for Judicial Studies) sought to address this issue through a series of annual bench-bar conferences. From these conferences came the Guidelines and Best Practices for Large and Mass-Tort MDLs document, which is designed to help judges and legal practitioners understand and efficiently navigate complex …
How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs
How Congress Should Fix Personal Jurisdiction, Stephen E. Sachs
Faculty Scholarship
Personal jurisdiction is a mess, and only Congress can fix it. The field is a morass, filled with buzzwords of nebulous origin and application. Courts have sought a single doctrine that simultaneously guarantees convenience for plaintiffs, fairness for defendants, and legitimate authority for the tribunal. Caught between these goals, we've let each new fact pattern pull precedent in a different direction, robbing litigants of certainty and blunting the force of our substantive law.
Solving the problem starts with reframing it. Rather than ask where a case may be heard, we should ask who may hear it. If the parties are …
Narrative, Truth, And Trial, Lisa Kern Griffin
Narrative, Truth, And Trial, Lisa Kern Griffin
Faculty Scholarship
This Article critically evaluates the relationship between constructing narratives and achieving factual accuracy at trials. The story model of adjudication— according to which jurors process testimony by organizing it into competing narratives—has gained wide acceptance in the descriptive work of social scientists and currency in the courtroom, but it has received little close attention from legal theorists. The Article begins with a discussion of the meaning of narrative and its function at trial. It argues that the story model is incomplete, and that “legal truth” emerges from a hybrid of narrative and other means of inquiry. As a result, trials …
Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington
Protecting The Right Of Citizens To Aggregate Small Claims Against Businesses, Paul D. Carrington
Faculty Scholarship
No abstract provided.
“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Neil S. Siegel, Michael C. Dorf
“Early-Bird Special” Indeed!: Why The Tax Anti-Injunction Act Permits The Present Challenges To The Minimum Coverage Provision, Neil S. Siegel, Michael C. Dorf
Faculty Scholarship
In view of the billions of dollars and enormous effort that might otherwise be wasted, the public interest will be best served if the Supreme Court of the United States decides the present challenges to the Patient Protection and Affordable Care Act (ACA) during its October 2011 Term. Potentially standing in the way, however, is the federal Tax Anti-Injunction Act (TAIA), which bars any “suit for the purpose of restraining the assessment or collection of any tax.” The dispute to date has turned on the fraught and complex question of whether the ACA's exaction for being uninsured qualifies as a …
Business Interests And The Long Arm In 2011, Paul D. Carrington
Business Interests And The Long Arm In 2011, Paul D. Carrington
Faculty Scholarship
No abstract provided.
Evaluating And Improving The Mdl Process, Francis Mcgovern, John G. Heyburn
Evaluating And Improving The Mdl Process, Francis Mcgovern, John G. Heyburn
Faculty Scholarship
No abstract provided.
The North Carolina Racial Justice Act: An Essay On Substantive And Procedural Fairness In Death Penalty Litigation, Neil Vidmar
The North Carolina Racial Justice Act: An Essay On Substantive And Procedural Fairness In Death Penalty Litigation, Neil Vidmar
Faculty Scholarship
No abstract provided.
Aggregate Litigation Goes Public: Representative Suits By State Attorneys General, Margaret H. Lemos
Aggregate Litigation Goes Public: Representative Suits By State Attorneys General, Margaret H. Lemos
Faculty Scholarship
State attorneys general represent their citizens in aggregate litigation that bears a striking resemblance to the much-maligned damages class action. Yet, while class actions are subject to a raft of procedural rules designed to protect absent class members, equivalent suits in the public sphere are largely free from constraint. The procedural disconnect between the two categories of aggregate litigation reflects a widespread assumption that attorneys general will adequately represent the interests of the state’s citizens, obviating any need for case-specific mechanisms for assuring the loyalty of lawyer to client.
This Article challenges the presumption of adequate public representation. By conflating …
A Political Show Trial In The Northern District: Oberlin-Wellington Fugitive Slave Rescue Case, Paul Finkelman
A Political Show Trial In The Northern District: Oberlin-Wellington Fugitive Slave Rescue Case, Paul Finkelman
Faculty Scholarship
This chapter from Justice and Legal Change on the Shores of Lake Erie, examines the first important cases ever heard by the U.S. District Court for the Northern District of Ohio. The cases, known as the Oberlin-Wellington Fugitive Slave Cases -- stemmed out of the rescue of a fugitive slave from the custody of a professional slave catcher. The fugitive was seized in Oberlin, and taken to nearby Wellington, and held in hotel while the slave catchers waiting for a train to take them to Columbus. Meanwhile, a mob -- consisting mostly of Oberlin residents, including many Oberlin College …
Introduction, Paul Finkelman
The American Law Institute’S New Principles Of Aggregate Litigation, Sam Issacharoff, Carolyn Kuhl, Francis Mcgovern, Stephanie Middleton, John Beisner
The American Law Institute’S New Principles Of Aggregate Litigation, Sam Issacharoff, Carolyn Kuhl, Francis Mcgovern, Stephanie Middleton, John Beisner
Faculty Scholarship
No abstract provided.
Rollen Und Rollenverständnisse Im Transnationalen Privatrecht [Roles And Role Perceptions In Transnational Private Law], Ralf Michaels
Rollen Und Rollenverständnisse Im Transnationalen Privatrecht [Roles And Role Perceptions In Transnational Private Law], Ralf Michaels
Faculty Scholarship
Downloadable Document is in German
Summary
1. The private lawyer’s role is inseparably connected with the paradigms and doctrines of private law. This is so because the role played by private lawyers constitutes a large part of their understanding of the discipline. At the same time, the shared understanding of the discipline has necessary consequences for the roles played by lawyers in it.
2. Roles and role perceptions in private law are contingent upon space and time. The most important factor affecting private lawyers today is the growing detachment of private law from the state, through globalization, Europeanization, and privatization …
Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical-Malpractice Claims In Florida, Neil Vidmar, Mirya Holman, Paul Lee
Most Claims Settle: Implications For Alternative Dispute Resolution From A Profile Of Medical-Malpractice Claims In Florida, Neil Vidmar, Mirya Holman, Paul Lee
Faculty Scholarship
No abstract provided.