Law Commons^™

Happy Anniversary, Anita And Clarence!, Bruce Berner

Law Faculty Publications

No abstract provided.

The Preclusive Effect Of Unemployment Compensation Determinations In Subsequent Litigation: A Federal Solution, Ann C. Hodges

Law Faculty Publications

This article examines the use of the doctrine of collateral estoppel to preclude litigation of statutory and common law actions challenging employee discharge based on determinations in unemployment compensation proceedings. First, the article reviews the history of the doctrine of collateral estoppel and examines the policies underlying its application. Next, the article reviews unemployment compensation law and analyzes the cases that have considered whether unemployment compensation determinations have preclusive effect in later litigation. After examining the existing law, the article engages in a comparative analysis of the advantages and disadvantages of according preclusive effect to unemployment compensation determinations, in light …

A Road Less Traveled To A Federal Era, John Paul Jones

Law Faculty Publications

Professor Jones examines efforts to ratify the federal Equal Rights Amendment which ended unsuccessfully in 1982. He argues that efforts to use the federal courts to fill in the gaps in protection of rights based on gender are likely to fall far short of what the Amendment would have provided, and that a renewed attempt at ratification would likely meet the same fate as the earlier one. He suggests a third alternative, U.S. ratification of the Convention on the Elimination of All Forms of Discrimination against Women, as the most feasible means of achieving the goals of the ERA without …

Teaching Legal Research: Past And Present, Joyce Manna Janto

Law Faculty Publications

For years librarians have debated which procedures will most effectively instruct law students in the art of legal research. Ms. Janto and Ms. Harrison-Cox trace the history of these efforts and propose a model program for the teaching of legal research.

Rule Revision Roundelay, Carl W. Tobias

Law Faculty Publications

A critique of the proposed revision of F.R.C.P. Rule 11.

Islamic Constitutionalism And The Concept Of Democracy, Azizah Y. Al-Hibri

Law Faculty Publications

This article will discuss select, basic principles of Islamic law relating to democratic governance, pointing out in the process certain areas of disagreement surrounding them in the literature and the grounds for such disagreements. Part II of this article presents a brief overview of Islamic law in order to provide a foundation for later discussion. The article then assesses the Islamic system of government in light of two major principles of Western democracies. They are (1) the principle that the will of the people shall be the basis of the authority of the government (Principle A) and (2) the principle …

Civil Justice Reform And The Balkanization Of Federal Civil Procedure, Carl W. Tobias

Law Faculty Publications

The recent civil war ripping apart Yugoslavia is a trenchant reminder of the horrors of balkanization. Without trivializing the Yugoslavian experience, the term balkanization usefully applies to developments in American federal civil procedure that now threaten the continued viability of a uniform, simple system of procedure. Thirty-four federal courts' nascent implementation of the Civil Justice Reform Act (CJRA) of 1990 will exacerbate these developments; indeed, if the remaining sixty districts that must issue civil justice expense and delay reduction plans by December 1993 fail to halt this trend, the Act will further fragment procedure. This article cautions those responsible for …

Reconsidering Rule 11, Carl W. Tobias

Law Faculty Publications

The Advisory Committee on the Civil Rules recently proposed that the Supreme Court and Congress amend Federal Rule of Civil Procedure 11. 1 The Rule, as revised in 1983, has been the most controversial amendment in the half-century history of the Federal Rules. Judges have inconsistently applied the 1983 revision, and it has engendered much expensive satellite litigation. Considerable evidence suggests that Rule 11 activity has chilled civil rights plaintiffs and attorneys. These difficulties led the Advisory Committee to initiate a study of the Rule in August of 1990, to solicit written public comments on its operation which were due …

Suits For Benefits Under Erisa, Jay Conison

Law Faculty Publications

No abstract provided.

Foundations Of The Common Law Of Plans, Jay Conison

Law Faculty Publications

No abstract provided.

Happy Birthday, Sweet 200; Happy Birthday, Sweet Sixteen, Bruce Berner

Law Faculty Publications

No abstract provided.

Update--Criminal Law & Procedure, Bruce G. Berner, David E. Vandercoy

Law Faculty Publications

No abstract provided.

State And Federal Constitutional Law Developments Affecting Indiana Law, Rosalie Levinson

Law Faculty Publications

No abstract provided.

Charlie: A Reminiscence, Bruce Berner

Law Faculty Publications

No abstract provided.

Postpetition Lending Under Section 364: Issues Regarding The Gap Period And Financing For Prepackaged Plans, David G. Epstein

Law Faculty Publications

If the priorities provided by section 364(c) are insufficient to entice potential lenders to provide sufficient :financing to a Chapter 11 debtor, the debtor may, with the court's approval, obtain credit by granting the lender a lien on property of the debtor that is senior to existing liens on such property (a "priming lien"). The granting of such a priming lien, however, is subject to several statutory conditions. First, as with section 364(c), the debtor must prove that it cannot obtain credit on any less intrusive basis (i.e., through the use of section 364(a), (b), or (c)). Second, the debtor …

Civil Rights Procedural Problems, Carl W. Tobias

Law Faculty Publications

Congress passed the Civil Rights Act of 1991 primarily to modify numerous Supreme Court opinions of the 1988 Term that jeopardized the rights of minorities and women. Particularly striking about those Supreme Court cases was the number which involved procedural questions and process values. These included the timing of litigation, both when employment discrimination victims must commence actions and when non-parties can reopen civil rights cases resolved through consent decrees; litigant responsibility for the expense of lawsuits; and proof requirements.

Most of the procedural developments in civil rights and employment discrimination litigation of the 1988 Term, however, were only recent …

Environmental Litigation And Rule 11, Carl W. Tobias

Law Faculty Publications

The 1983 amendment to Federal Rule of Civil Procedure 11 has been the most controversial revision in the half-century history of the Federal Rules. Judges have applied amended Rule 11, which requires them to sanction lawyers and parties who do not conduct reasonable inquiries before filing papers, in over 1000 reported opinions, considerably more unreported determinations, and numerous informal contexts. The Rule has engendered much unnecessary satellite litigation and has been implemente4 inconsistently, while attorneys' fees remain the "sanction of choice" for violations. Rule 11 activity has especially disadvantaged civil rights plaintiffs and lawyers, whose lack of resources can make …

U.C.C. Survey: General Provisions, Bulk Transfers, And Documents Of Title, David Frisch

Law Faculty Publications

This article reviews recent case law and related developments under Articles 1, 2, 6 and 7 of the Uniform Commercial Code (U.C.C. or Code).

The President And The Federal Bench, Carl W. Tobias

Law Faculty Publications

Professor Tobias assesses the efforts of the George H.W. Bush Administration in appointing women and African-Americans to the federal bench.

Montana Fight Over Women's Rights, Carl W. Tobias

Law Faculty Publications

Report of abortion protests that took place in various locations around Montana.

Amending The Other Party Joinder Amendments, Carl W. Tobias

Law Faculty Publications

Comparatively little controversy attended the semi-annual meeting of the Civil Rules Advisory Committee which was held in late November, 1991. During that meeting, however, the Committee preliminarily considered the prospect of amending Federal Rule of Civil Procedure 23, which governs class actions.

The Advisory Committee is now contemplating possible revision of Rule 23 governing class actions. If that effort proceeds, the Committee should seriously consider reexamining Rules 19 and 24(a)(2), the other two party joinder provisions that were simultaneously changed and integrated with Rule 23 more than a quarter-century ago. This would enable the Committee to propose an integrated package …

Civil Justice Reform Roadmap, Carl W. Tobias

Law Faculty Publications

All three branches of the federal government have instituted initiatives aimed at reducing expense and delay in civil litigation. On October 23, 1991, President Bush issued an Executive Order that imposes a number of requirements on government lawyers who participate in civil litigation. During February 1992, the Administration sponsored introduction of the Access to Justice Act, its legislative proposal for civil justice reform. The bill did not pass, because it included certain provisions that apparently proved unacceptable to many members of the House and Senate.

Regardless of how the controversy over civil justice reform is ultimately resolved, the reform effort …

Book Review: The North Carolina Legal Deskbook, Timothy L. Coggins

Law Faculty Publications

A book review on The North Carolina Legal Deskbook: The Common Sense Approach 1992-93.

Charlie: A Reminiscence, Bruce G. Berner

Law Faculty Publications

No abstract provided.

Legal Lore: Sin, Scandal, And Substantive Due Process, Wendy Collins Perdue

Law Faculty Publications

For students of civil procedure, the names Pennoyer and Neff evoke these dry facts: In an initial suit, one J.H. Mitchell sued Neff in Oregon state court. Because Neff could not be found within Oregon, he was served by pub- lication. Neff never appeared, and a default judgment was entered against him. To satisfy the judgment, Mitchell attached Neff's Oregon real estate. The property was sold at auction, and Pennoyer later acquired it. Nearly a decade later, Neff returned to Oregon and brought suit in federal court to evict Pennoyer from the land, claiming that the original judgment was invalid. …

The Transformation Of Trans-Substantivitiy, Carl W. Tobias

Law Faculty Publications

Professor Linda Mullenix and Professor Gene Shreve have recently ventilated two intertwined issues at the core of modern federal civil procedure. They questioned scholars' growing criticism of the idea that the Federal Rules of Civil Procedure are trans-substantive. Both writers also asked about the increased emphasis that commentators have accorded procedure's detrimental effects on specific rights, such as civil rights, and on particular groups or litigants, such as minorities. The preferable response to these plaints is a single word: Congress. Because the issues that Professors Mullenix and Shreve raise are thought-provoking, however, they deserve elaboration.

Judicial Oversight Of Civil Justice Reform, Carl W. Tobias

Law Faculty Publications

Thirty-four Early Implementation District Courts have recently taken steps to implement the Civil Justice Reform Act of 1990 by issuing civil justice plans premised on reports that their advisory groups assembled. An important component of this unprecedented nationwide examination of the condition of the federal trial courts has now moved to the phase in which circuit committees and the Judicial Conference will review the reports and the plans. If the national experiment in reform of the civil justice system is to reduce expense and delay in civil litigation, the circuit committees and the Judicial Conference must completely and carefully evaluate …

The Montana Federal Civil Justice Plan, Carl W. Tobias

Law Faculty Publications

The Montana Federal District Court and thirty-three other federal districts recently took steps to qualify as Early Implementation District Courts (EIDC) under the Civil Justice Reform Act of 1990. The Montana District completed the development of its civil justice expense and delay reduction plan, which also includes numerous proposed amendments of the local rules necessary to implement the plan, before the December 31, 1991 statutory deadline. In the last issue of this journal, I analyzed the work that preceded development of the plan. I examined the efforts of the Advisory Group to Implement the Civil Justice Reform Act of 1990 …

Civil Rights Conundrum, Carl W. Tobias

Law Faculty Publications

As a case study of the impediments imposed by the revised F.R.C.P. Rule 11 in civil rights litigation, Professor Tobias relates the story of the Robeson County, N.C. prosecution of Eddie Hatcher and Timothy Jacobs, their subsequent civil rights action, and the ensuing Rule 11 sanctions imposed upon their counsel, as reported in In re Kunstler, 914 F.2d 505 (4th Cir. 1990).

Sin, Scandal, And Substantive Due Process, Wendy Collins Perdue

Law Faculty Publications

For students of civil procedure, the names Pennoyer and Neff evoke these dry facts: In an initial suit, one J.H. Mitchell sued Neff in Oregon state court. Because Neff could not be found within Oregon, he was served by publication. Neff never appeared, and a default judgment was entered against him. To satisfy the judgment, Mitchell attached Neff's Oregon real estate. The property was sold at auction, and Pennoyer later acquired it. Nearly a decade later, Neff returned to Oregon and brought suit in federal court to evict Pennoyer from the land, claiming that the original judgment was invalid. The …