Law Commons^™

Can Speech Act Theory Save Notice Pleading?, Susan E. Provenzano

Indiana Law Journal

Countless scholars have debated—and lower courts have attempted to apply—the plausibility pleading regime that the Supreme Court introduced in Twombly and Iqbal. Iqbal took Twombly’s requirement that a complaint plead plausibly and turned it into a two-step test. Under that test, the life or death of a lawsuit rests on the distinction between “well-pleaded” and “conclusory” allegations. Only the former are assumed true on a motion to dismiss. Seven decades of pleading precedent had taken a sensible, if unstable, approach to the truth assumption, making a single cut between factual contentions (assumed true) and legal conclusions (ignored). But Iqbal redrew …

Enforcing Outbound Forum Selection Clauses In State Court, John Coyle, Katherine Robinson

Indiana Law Journal

Forum selection clauses are a staple of modern business law. Parties agree, ex ante, on where they can sue one another and then rely on the courts to enforce these agreements. Although the number of contracts containing forum selection clauses has skyrocketed in recent years, there is a dearth of empirical information about enforcement practice at the state level. Are there any states that refuse to enforce them? How frequently are they enforced? Under what circumstances, if any, will these clauses be deemed unenforceable? The existing literature provides few answers to these questions.

This Article aims to fill that gap. …

An Appellate Solution To Nationwide Injunctions, Sam Heavenrich

Indiana Law Journal

District courts have issued an unprecedented number of nationwide injunctions during the Obama and Trump administrations, provoking criticism from the Supreme Court. This Article proposes a change to the Federal Rules of Civil Procedure that addresses the Justices’ concerns without taking the drastic step of eliminating nationwide injunctions entirely. Specifically, this Article recommends amending Rule 65 to allow only the appellate courts to issue injunctive relief that extends beyond the plaintiffs in cases challenging a federal law or policy. In addition to the proposed Rule change, this Article offers a categorization framework for existing proposals addressing nationwide injunctions, classifying them …

Rethinking Standards Of Appellate Review, Adam Steinman

Indiana Law Journal

Every appellate decision typically begins with the standard of appellate review. The Supreme Court has shown considerable interest in selecting the standard of appellate review for particular issues, frequently granting certiorari in order to decide whether de novo or deferential review governs certain trial court rulings. This Article critiques the Court's framework for making this choice and questions the desirability of assigning distinct standards of appellate review on an issue-by-issue basis. Rather, the core functions of appellate courts are better served by a single template for review that dispenses with the recurring uncertainty over which standard governs which trial court …

Flipping The Script On Brady, Ion Meyn

Indiana Law Journal

Brady v. Maryland imposes a disclosure obligation on the prosecutor and, for this

reason, is understood to burden the prosecutor. This Article asks whether Brady also

benefits the prosecutor, and if so, how and to what extent does it accomplish this?

This Article first considers Brady’s structural impact—how the case influenced

broader dynamics of litigation. Before Brady, legislative reform transformed civil

and criminal litigation by providing pretrial information to civil defendants but not

to criminal defendants. Did this disparate treatment comport with due process?

Brady arguably answered this question by brokering a compromise: in exchange for

imposing minor obligations on …

Improving Taiwan's Civil Procedure By Citizen Participation: Focusing On Expert Testimony In Public Interest Cases, Yin-Song Hsu

Maurer Theses and Dissertations

“The life of the law has not been logic; it has been experience.”

United States Supreme Court Justice Oliver Wendell Holmes, Jr's famous quotation adequately explains the institutional purpose of citizen participation in important trials. Court decisions require both logical reasoning and a practical adherence to the reality of citizens’ experiences. Currently, the Taiwanese public believes that judicial decisions are often not in line with national perceptions of law. In addition, judges’ limited social experiences often cause the public to distrust their verdicts. The life experiences of citizens can properly fill in the gaps in judicial knowledge and supplement the …

Human-Centered Civil Justice Design: Procedural Justice And Process Value Pluralism, Victor D. Quintanilla, Michael A. Yontz

Articles by Maurer Faculty

No abstract provided.

Domicile Dismantled, Kerry Abrams, Kathryn Barber

Indiana Law Journal

Part I of this Article discusses the legal and factual background of Mas v. Perry. This narrative reveals how the case reflects both the changes in American society that were beginning to occur at that time and the struggle of the concept of domicile to keep pace with those changes. Part II traces the development of the fundamental shift in gender roles that began several years before Mas was decided. This section argues that the growing number of women attending college, embarking upon careers, and forming two-career marriages increased the difficulty of measuring domicile, while undermining the efficacy of a …

The Public Believes Predispute Binding Arbitration Clauses Are Unjust: Ethical Implications For Dispute-System Design In The Time Of Vanishing Trials, Victor D. Quintanilla, Alexander B. Avtgis

Articles by Maurer Faculty

This Article discusses a troubling cause of the decline in civil trials — the growing ubiquity of predispute binding arbitration clauses — and discusses tension between roles and responsibilities classically associated with zealous advocacy and the pressing need for new roles and responsibilities associated with ethical dispute system design.

Over the past decade, two interacting patterns have come to encourage transactional attorneys to engage in zealous advocacy when crafting predispute binding arbitration clauses in adhesion contracts. First, recent U.S. Supreme Court jurisprudence broadly defers and delegates authority to those who create such clauses in adhesion contracts with little oversight. Second, …

Human-Centered Civil Justice Design, Victor D. Quintanilla

Articles by Maurer Faculty

This Article introduces a novel approach to improving the civil justice system, referred to as human-centered civil justice design. The approach synthesizes insights and practices from two interdisciplinary strands: human-centered design thinking and dispute system design. The approach is rooted in human experiences with the processes, systems, people, and environments that members of the public encounter when navigating the civil justice system and how these experiences interact with the entangled web of hardships and legal adversities they face in the everyday.

Human-centered civil justice designers empathize with the intended beneficiaries and stakeholders of the civil justice system, seeking to deeply …

A Welfarist Perspective On Lies, Ariel Porat, Omri Yadlin

Indiana Law Journal

Should a Muslim employee who, in order to avoid discrimination, falsely stated in his job interview that he is Christian be fired for his dishonesty? Should a buyer of a tract of land who, before contracting, conducted an expensive investigation that revealed a high likelihood of mineral deposits be subject to liability for fraud because he told the seller he knew nothing about the land’s mineral potential before purchase? Is a doctor violating her legal duties toward her patient if she convinces him to get vaccinated on the pretext that it is in his best interest when it is instead …

Commonality And The Constitution: A Framework For Federal And State Court Class Actions, Joseph A. Seiner

Indiana Law Journal

In Wal-Mart Stores, Inc. v. Dukes, 131 S. Ct. 2541 (2011), the Supreme Court concluded that the allegations of pay discrimination in a case brought by over one million female employees lacked sufficient commonality to warrant class certification under Federal Rule of Civil Procedure 23(a). Though the case was expressly decided under the Federal Rules, some well-known employer groups have begun to advance the argument that Wal-Mart was decided on constitutional grounds. These advocates maintain that the Supreme Court’s decision creates a commonality standard for all class-action plaintiffs—regardless of whether those litigants bring their claims in federal or state court. …

Erie And Preemption: Killing One Bird With Two Stones, Jeffrey Rensberger

Indiana Law Journal

The Supreme Court has developed a standard account of the Erie doctrine. The Court has directed different analyses of Erie cases depending upon whether the federal law in question is in the form of a federal rule (or statute) or is instead a judge-made law. But the cases applying the doctrine are difficult to explain using the standard account. Although the Court and commentators have noted that Erie is a type of preemption, they provide little, if any, rigorous analysis of Erie in light of preemption doctrines. This Article attempts to fill that void, offering an extended analysis of Erie …

Solving The Puzzle Of Transnational Class Actions, Kevin M. Clermont

Indiana Law Journal

How should a U.S. class action treat proposed foreign class members in a circumstance where any resulting judgment will likely not bind those absentees abroad? The Author responds to Zachary Clopton’s analysis of this puzzle, and introduces a counterproposal.

Taboo Procedural Tradeoffs: Examining How The Public Experiences Tradeoffs Between Procedural Justice And Cost, Victor D. Quintanilla

Articles by Maurer Faculty

Fairness is a foundational concept in American jurisprudence. Yet when evaluating our system of civil procedure, debate surrounds how to reconcile the competing ends of our civil justice system. While scholars agree that our civil justice system must vindicate rights, deter wrongful conduct, respect human dignity, and enhance social welfare and efficiency, scholars disagree on how best to reconcile these ends. Doubtless, the tension between these plural ends poses difficulty when courts, civil rule designers, and legislators balance and weigh the costs and benefits of different civil procedural rules and constitutional safeguards under the Due Process Clause. Notably, courts face …

Use Of Eu Institutions Outside The Eu Legal Framework: Foundations, Procedure And Substance, Paul Craig

Articles by Maurer Faculty

The decision in Case Pringle was primarily concerned with whether the European Stability Mechanism (TFEU) was compatible with various substantive provisions of the Treaty on the Functioning of the European Union, most notably the prohibition on bailouts in Article 125 TFEU. The judgment is nonetheless important for other reasons, including the legitimacy of the use of EU institutions outside the EU legal framework. It will be seen that the CJEU endorsed their use and reaffirmed earlier case law. These conclusions were analysed by Steve Peers in a helpful article in a previous issue of the European Constitutional Law Review, in …

Is The Antidiscrimination Project Being Ended?, Michael J. Zimmer

Indiana Journal of Law and Social Equality

No abstract provided.

Critical Race Empiricism: A New Means To Measure Civil Procedure, Victor D. Quintanilla

Articles by Maurer Faculty

This article reflects the second phase in a research line examining the effects of highly subjective pleading rules, specifically, Ashcroft v. Iqbal, 556 U.S. 662 (2009), and was an invited contribution to a symposium, which explored the intersection of empirical legal methods and critical race theory. In this phase, I updated the empirical legal analysis in a prior article, Beyond Common Sense: A Social Psychological Study of Iqbal’s Effect on Claims of Race Discrimination, 17 Michigan Journal of Race and Law 1 (2011), in three ways. First, I lengthened the time horizon from 18 months to 24 months, increasing the …

Regarding Pained Sympathy And Sympathy Pains: Morality, And Empathy In The Civil Adjudication Of Pain, Jody L. Madeira

Articles by Maurer Faculty

This Essay considers the legal propriety of the empathic responses of jurors to suffering plaintiffs. To that end, Part II first explicates the legal contours of a tension between what is experiential or physical (objective) and what is expressionistic or non-physical (subjective). This tension is a foundational jurisprudential concern in personal injury litigation because the subjective is seen to threaten the rule of law: the perceived primacy of reason and logic. Thus, this tension is also what the parties' attorneys seek to exploit and what the court seeks to constrain. Part III explores why an empathic identification is indeed a …

Recognizing Odysseus' Scar: Reconceptualizing Pain And Its Empathic Role In Civil Adjudication, Jody L. Madeira

Articles by Maurer Faculty

This Article proffers a consideration of how the expression of pain impacts the interpersonal dimensions of personal injury proceedings, contesting through philosophical logic and textual analyses of case law and legal practitioners' texts the conclusion of scholars such as Elaine Scarry and Robert Cover that pain unmakes both the word and the world. Seeing pain as something that can and must be communicated, albeit in a different form than pain embodied, makes pain a much more profound force, comports with our understanding of pain as a physical yet interpersonally meaningful sensation, and has many evidentiary ramifications. Taking as its premise …

Clear Sailing Agreements: A Special Form Of Collusion In Class Action Settlements, William D. Henderson

Articles by Maurer Faculty

A clear sailing agreement (or clause) is a compromise in which a class action defendant agrees not to contest the class lawyer's petition for attorneys' fees. This Article argues that clear sailing provisions often facilitate collusive settlements in cases involving non-pecuniary relief or claims-made common funds that return all unclaimed monies to the defendant. Because these types of settlements present difficult valuation problems, trial courts lack a clear benchmark for calculating attorneys' fees. Defendants and class can exploit this uncertainty by presenting an inflated settlement value to the court (to justify higher attorneys' fees) while simultaneously reducing the true cost …

The Practice Of Precedent: Anastasoff, Noncitation Rules, And The Meaning Of Precedent In An Interpretive Community, Lauren K. Robel

Articles by Maurer Faculty

No abstract provided.

Reconciling The Juridical Links Doctrine With The Federal Rules Of Civil Procedure And Article Iii, William D. Henderson

Articles by Maurer Faculty

Over the past three decades, the juridical link and concerted action exceptions have evolved from dicta in the Ninth Circuit's decision in La Mar to an amorphous and undertheorized body of case law that has dangerously merged procedural and jurisdictional issues. Drawing on the principles of class action jurisprudence set forth by the Supreme Court in Amchem and Ortiz, lower courts should consider the issues of class certification and Rule 20(a) joinder before turning to the issue of standing under Article III. Under this approach, courts would not be able to reconcile much of the juridical links case law with …

1367 And All That: Recodifying Federal Supplemental Jurisdiction, Thomas D. Rowe Jr.

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

The Forgotten Proviso Of § 1367(B) (And Why We Forgot), Peter Raven-Hansen

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Supplemental Jurisdiction: A Confession, An Avoidance, And A Proposal, David L. Shapiro

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Comment On The Supplemental- Jurisdiction Statute: 28 U.S.C. § 1367, Arthur D. Wolf

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Making Sense Of Nonsense: Reforming Supplemental Jurisdiction, Graham C. Lilly

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Teaching Supplemental Jurisdiction, Stephen C. Yeazell

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.

Crosscurrents: Supplemental Jurisdiction, Removal, And The Ali Revision Project, Joan Steinman

Indiana Law Journal

Symposium: A Reappraisal of the Supplemental-Jurisdiction Statute: Title 28 U.S.C. § 1367.