Law Commons^™

Rejecting The Touchstone: Complete Preemption And Congressional Intent After Beneficial National Bank V. Anderson, Margaret C. Tarkington

Margaret C Tarkington

The paper examines the doctrine of complete preemption—a jurisdictional doctrine that allows for removal based on a federal preemption defense contrary to the well-pleaded complaint rule. The doctrine was expanded by the Supreme Court in 2003 in Beneficial National Bank v. Anderson. This paper explores efficiency, separation of powers, and federalism problems created by Anderson, both generally and in the context of a specific statutory scheme—the Carmack Amendment. The paper then offers a new framework, relying on congressional intent to create federal removal jurisdiction, for determining when complete preemption should apply.

Expert Testimony Disclosure Under Federal Rule 26: A Proposed Amendment, Keith Beyler

Keith Beyler

Federal Rule 26 requires each party to disclose the identity of its expert witnesses and to provide written reports prepared by certain of these experts. This article proposes an amendment that extends the written report requirement to all employee experts and party experts and that requires opinion disclosure for independent experts. The article compares the Federal Rule 26 procedure with state court expert witness information exchange procedures, reviews the written report coverage decisions under Federal Rule 26, and explains why the proposed changes should be made.

Procedural Path Dependence: Discrimination And The Civil-Criminal Divide, Julie C. Suk

Julie C Suk

Procedural path dependence occurs when the particular features of the procedural system which has been charged with enforcing a given legal norm determine the substantive path of that legal norm. This article shows how the limits of employment discrimination law in two different national contexts can be explained by procedural dynamics. In France, as in several European countries, employment discrimination law is enforced predominantly in criminal proceedings. French criminal procedure enables the discovery of information necessary to proving the facts of discrimination, whereas the limited nature of French civil procedure makes it impossible for such information to be revealed. As …

Doctrine Formulation And Distrust, Toby J. Heytens

Toby J Heytens

Legal scholars exhaustively debate the substantive wisdom of Supreme Court decisions and the appropriate methods for interpreting legal texts, but rarely consider the more pragmatic need to craft rules that will be faithfully implemented by the lower court judges who have the last word in the overwhelming majority of cases. Political scientists, in contrast, invest tremendous effort seeking to determine whether lower courts “comply” with Supreme Court directives, but find themselves unable to explain why their own studies generally find high levels of compliance. This Article argues that part of the answer lies in the Court’s ability to craft legal …

The Plot Thickens: The Appellate Brief As Story, Kenneth D. Chestek

Kenneth D. Chestek

Why are appellate briefs boring? Does overreliance on structural paradigms like IRAC lead to formulaic, and overly legalistic, writing? The author suggests that, by conceiving of briefs as stories and consciously using the elements of narrative (character, conflict, setting, theme, and plot, among others), the brief writer can make the client's story come to life for the reader, hopefully producing a more interesting, and therefore compelling, brief. The author has written a brief in a mock case (Rubin v. Old York County Department of Social Services), and then deconstructs the brief in the article to show how the author of …

Foreign Plaintiffs, Forum Non Conveniens, And Consistency, Andrew R. Klein

Andrew R Klein

Few topics inspire more debate than globalization. Yet, despite controversy, a more integrated global economy seems inevitable. As former United Nations Secretary General Kofi Annan has stated, “arguing against globalization is like arguing against the laws of gravity.”

One consequence of globalization is an increased likelihood that a person will suffer harm caused by the conduct of an entity based outside her own country. This, in turn, can lead to a victim seeking compensation far from home. The trend is evident in the United States, where an increasing number of foreign plaintiffs are seeking relief based on events that took …

If The Glove Don’T Fit, Try Newer Gloves: The Unplanned Obsolescence Of The Substantial Similarity Standard For Experimental Evidence, Jonathan M. Hoffman

Jonathan M Hoffman

In the context of a recent Fifth Circuit decision, this article reviews the law concerning the admissibility of “experimental” and demonstrative evidence. The standards used to determine the admissibility of both categories of evidence predate the Federal Rules of Evidence. These standards for admission of such evidence are obsolete and at odds with the Federal Rules. The issue is particularly important in the wake of the Kumho Tire decision and the 2000 amendments to Federal Rule of Evidence 702, as engineers and other technical experts are increasingly called upon to test their hypotheses, even as the courts’ continued use of …

Killing Roger Coleman: Habeas, Finality, And The Innocence Gap, Todd E. Pettys

Todd E. Pettys

For the past fifteen years, the execution of Roger Coleman has served as perhaps the most infamous illustration of the U.S. Supreme Court’s determination to help the states achieve finality in their criminal cases. Convicted of rape and murder in 1982, Coleman steadfastly maintained his innocence and drew many supporters to his cause. In its 1991 ruling in Coleman v. Thompson, however, the Court refused to consider the constitutional claims raised in Coleman’s habeas petition. The Court ruled that Coleman had forfeited his right to seek habeas relief when, in prior state proceedings, his attorneys mistakenly filed their notice of …

Point Of Order: An Insider's Guide To Congressional Investigations, Don R. Berthiaume, Raymond Shepherd

Don R Berthiaume

This CONTEMPORARY LEGAL NOTE provides some insight into the different phases of a congressional investigation; the critical differences between criminal proceedings and congressional investigations; the legal devices committees and subcommittees utilize in their investigations; and the basic rules of congressional hearings.

Remitting The Remittitur, Mark G. Haug, Devon J. Steinmeyer

mark g haug

The purpose of this article is a review of the statistical analysis performed by Judge Jack B. Weinstein in Geressy v. Digital Equipment Corp. in determining whether damages awarded by a jury were excessive under New York’s statutory “material deviation” standard. Despite a concern that the sample population was materially skewed, Judge Weinstein based his analysis upon a normal (“bell”) curve and determined that the award was a material deviation. In this article, we examine the methodology of Judge Weinstein’s analysis and accept his invitation to make refinements that will improve the level of confidence that may be placed on …

The Play's The Thing: A Theory Of Taxing Virtual Worlds, Bryan T. Camp

Bryan T Camp

The Play’s The Thing: A Theory of Taxing Virtual Worlds: Bryan T. Camp Abstract Taxation is shadow life. As our culture monetizes more and more life activities, the shadow grows. This article looks at the potential tax issues arising from a new life activity: online role-playing games in virtual worlds. Currently, some 12 million people regularly play such games and the number is growing. Exploring the reach of the Tax Code into virtual world transactions not only responds to the potentially practical needs of millions of U.S. taxpayers, it also permits a reevaluation of core principles of income tax as …

Trial And Error - Balancing The Scales Of Justice Through The Doctrines Of Stare Decisis And Ex Proprio Motu, Antonin I. Pribetic

Antonin I. Pribetic

Many will be familiar with the legal axiom: Great cases, like hard cases, make bad law. This comment addresses the obverse: Bad cases, like ordinary cases, make hard law. Put another way, to what extent should a judge or appellate court be bound by the doctrine of stare decisis when confronted with a legal precedent which is incorrect?

Who Knew? Admissibility Of Subsequent Remedial Measures When Defendants Are Without Knowledge Of The Injuries, Mark Boyko, Ryan Vacca

Mark Boyko

Federal Rule of Evidence 407 prohibits the introduction of subsequent remedial measures for the purposes of demonstrating negligence, culpable conduct, or product defect. But the rule breaks down when a defendant undertakes the new safety measure after the plaintiff's injury, but before the defendant had knowledge of the loss. This situation is not uncommon. Toxic exposure cases represent a prime example where defendants are likely to have improvements before learning of a plaintiff's injury. Should evidence of these improvements be admissible? The literal text of Rule 407 suggests not. Yet admitting this evidence may not have the same chilling effect …

Common Sense About Common Claims, David G. Karro

David G. Karro

In Dukes v. Wal-Mart, Inc., 506 F.3d 1168 (9th Cir. 2007), the 9th Circuit affirmed an order certifying a nationwide class of 1.5 million women claiming sex discrimination by a single employer. The court held that class members are not entitled to notice that they are in the class until after the merits are decided, and that none has the right to refuse membership. It seemed to accept the idea that it could only certify the class if it “contemplated that all members of the class will be bound by the ultimate ruling on the merits,” Sosna v. Iowa, 419 …

The Use Of Defendant Class Actions To Protect Rights In The Internet, Nelson Rodrigues Netto

Nelson Rodrigues Netto

No abstract provided.

A Fraude À Execução E O Novo Art. 615-A, Do Cpc, Nelson Rodrigues Netto

Nelson Rodrigues Netto

No abstract provided.

No Chance To Prove Themselves: The Rights Of Mentally Disabled Parents Under The Americans With Disabilities Act And State Law, Dale S. Margolin

Dale S Margolin

This article explores the relationship between state child welfare laws that terminate parental rights and the federal Americans with Disabilities Act (ADA). The article begins by analyzing the application of the ADA to termination of parental rights proceedings against parents with mental disabilities. It then surveys state child welfare laws, focusing on the treatment of parents under New York State law. The article concludes by advocating for a change to reflect the principles of the Americans with Disabilities Act in state laws and in practice.

Jackpot Justice: Verdict Variability And The Mass Tort Class Action, Byron G. Stier

Byron G. Stier

Mass tort scholars, practitioners, and judges struggle with determining the most efficient approach to adjudicate sometimes tens of thousands of cases. Favoring class actions, mass tort scholars and judges have assumed that litigating any issue once is best. But while litigating any one issue could conceivably save attorneys’ fees and court resources, a single adjudication of thousands of mass tort claims is unlikely to further tort goals of corrective justice, efficiency, or compensation in a reliable way. That is because, as recent empirical research on jury behavior shows, any one jury’s verdict may be an outlier on a potential bell …

The Optimal Law Enforcement With Mandatory Defendant Class Actions, Nelson Rodrigues Netto

Nelson Rodrigues Netto

In this article we argue that the optimal law enforcement system is based on an ideal mechanism to prevent and redress harms in the mass information society. This goal is achieved by means of mandatory defendant class actions.

The idea of mass society has evolved in time since the beginning of the industrialization in the 18th century. At that time, the transformation of the means of production from artisanal craftwork to large scale machinery work, forged the concept of mass production. Nowadays, massive and expeditious relationships are created by sophisticated communications links, especially the Internet, furnishing services and goods, which …

Bringing Locus Into Focus: A Choice-Of-Law Methodology For Cisg-Based Concurrent Contract And Product Liability Claims, Antonin I. Pribetic

Antonin I. Pribetic

The article discusses choice-of-law theories for both contractual and tort/product liability claims governed by the CISG. The underlying theme is that concurrent claims are not necessarily equivalent claims. While concurrent liability in contract and tort (namely, product liability) may be applicable or alternative remedies available, the focus of the CISG is the harmonization of rules governing international sale contracts. The article argues that factors such as the place of injury or where the damages are sustained are less relevant than the situs of the contract, based upon the view that, without privity of contract, the concurrent tort would not arise. …

A Figura Do Estipulante Na Ação Direta Da Vítima No Seguro Obrigatório De Responsabilidade Civil, Nelson Rodrigues Netto

Nelson Rodrigues Netto

No abstract provided.

Notas Sobre As Tutelas Mandamental E Executiva ‘Lato Sensu’ Nas Leis Nº 10.358/01 E 10.444/02, Nelson Rodrigues Netto

Nelson Rodrigues Netto

No abstract provided.

Law As Largess: Shifting Paradigms Of Law For The Poor, Deborah M. Weissman

Deborah M. Weissman

The article examines the tension between the principles of the Rule of Law and cultural norms of self-sufficiency. It begins by reviewing the principles of the Rule of Law as an ideal, the pursuit of which has led to historical efforts to meet the legal needs of the poor. It then examines recent legal events including federal statutory changes, three Supreme Court cases, and a federal circuit court case which have limited legal resources for those who cannot pay. The article then examines these developments in the context of a sea-change in the political environment of the nation, coinciding with …

Evidentiary Relevance, Morally Reasonable Verdicts, And Jury Nullification, Todd E. Pettys

Todd E. Pettys

In Old Chief v. United States, the Supreme Court stated that evidence offered by the Government in a criminal case has “fair and legitimate weight” if it tends to show that a guilty verdict would be morally reasonable. This Article focuses on that proposition. First, it discusses the ways in which Old Chief’s analysis rests upon a broadened understanding of evidentiary relevance. Second, it argues that significant theoretical difficulties impede any effort to determine whether evidence tends to show that a guilty verdict would be morally reasonable. Third, it argues that adopting Old Chief’s conception of relevance would necessitate significant …

Exceção De Pré-Executividade, Nelson Rodrigues Netto

Nelson Rodrigues Netto

No abstract provided.

The Importance Of Being Earnest: Pleading And Maintaining A Class Action For The Purpose Of Binding Class Members, David G. Karro

David G. Karro

This 1981 article contends, as its title suggests, that federal class actions should be brought only if class counsel believe they can represent the individual interests of the members of the class described in the complaint. After all, the mere filing of a class action complaint has legal consequences, and it is generally acknowledged that the members of even an alleged class have some right to rely on the class attorney to protect their interests. A certification order therefore does not create a class, but instead puts the court's imprimatur on class counsels’ representation that they can carry out rhw …