Law Commons^™

Class Actions, Statutes Of Limitations And Repose, And Federal Common Law, Stephen B. Burbank, Tobias Barrington Wolff

All Faculty Scholarship

After more than three decades during which it gave the issue scant attention, the Supreme Court has again made the American Pipe doctrine an active part of its docket. American Pipe addresses the tolling of statutes of limitations in federal class action litigation. When plaintiffs file a putative class action in federal court and class certification is denied, absent members of the putative class may wish to pursue their claims in some kind of further proceeding. If the statute of limitations would otherwise have expired while the class certification issue was being resolved, these claimants may need the benefit of …

$314m And Sovereign Immunity Are At Stake In Upcoming High Court Case, Peter B. Rutledge, Amanda W. Newton

Popular Media

The Nov. 7 Supreme Court arguments in Republic of Sudan v. Harrison will implicate issues of civil procedure, sovereign immunity, and statutory interpretation. At stake for the Republic of Sudan is $314 million in Sudanese assets. More broadly, however, the court’s decision could have ramifications for any nation, including the United States, that enjoys sovereign immunity.

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 …

Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell

Thomas W. Mitchell

Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real …

Stays, Portia Pedro

Faculty Scholarship

After judges issue orders or judgments, they often face the difficult task of making a determination even more complex than that of the underlying order, but in less time, with less guidance, and with high stakes. These judges are deciding whether to grant a stay pending appeal — whether to prevent the enforcement of a court order or judgment until a court has decided the appeal. Although stays may seem to be a mere procedural technicality, stays are, instead, the new battleground for injunctive litigation. While review was pending, stay determinations have decided if abortion providers could operate in Texas, …

Procedural Design, Alexandra D. Lahav

Vanderbilt Law Review

The procedural law dictates the sequence of steps that bring a lawsuit from filing to completion. The design of civil procedure in the federal courts is generally described as having the following sequential order: complaint, motion to dismiss, discovery, summary judgment, trial, and finally, appeal. While this is a passable description of the vision of the drafters of the Federal Rules of Civil Procedure in 1938, it no longer describes the reality of federal litigation. Jurisdiction can be determined at the end of the lawsuit rather than the beginning. Judges demand determination of factual disputes before discovery commences through a …

Rethinking Judicial Review Of High Volume Agency Adjudication, Jonah B. Gelbach, David Marcus

All Faculty Scholarship

Article III courts annually review thousands of decisions rendered by Social Security Administrative Law Judges, Immigration Judges, and other agency adjudicators who decide large numbers of cases in short periods of time. Federal judges can provide a claim for disability benefits or for immigration relief the sort of consideration that an agency buckling under the strain of enormous caseloads cannot. Judicial review thus seems to help legitimize systems of high volume agency adjudication. Even so, influential studies rooted in the gritty realities of this decision-making have concluded that the costs of judicial review outweigh whatever benefits the process creates.

We …

Personal Jurisdiction And The Web, Joseph S. Burns, Richard A. Bales

Maine Law Review

Courts have struggled in determining precisely when a defendant should be subject to suit in a particular forum based on his or her Web activity. Although most jurisdictions have applied some form of the “minimum contacts” test, the test has been applied inconsistently. A new standard is needed to resolve personal jurisdiction disputes arising out of Web activity. This Article examines the ways in which modern courts have attempted to resolve personal jurisdiction issues based on Web activity, as well as the inconsistencies that have resulted from the inherent difficulty in conceptualizing the Web.

Mdl V. Trump: The Puzzle Of Public Law In Multidistrict Litigation, Andrew D. Bradt, Zachary D. Clopton

Northwestern University Law Review

Litigation against the Trump Administration has proliferated rapidly since the inauguration. As cases challenging executive actions, such as the “travel ban,” multiply in federal courts around the country, an important procedural question has so far not been considered—Should these sets of cases be consolidated in a single court under the Multidistrict Litigation Act? Multidistrict litigation, or MDL, has become one of the most prominent parts of federal litigation and offers substantial benefits by coordinating litigation pending in geographically dispersed federal courts. Arguably, those benefits would also accrue if “public law” cases were given MDL treatment. There also are some underappreciated …

Discouraging Frivolous Copyright Infringement Claims: Fee Shifting Under Rule 11 Or 28 U.S.C. § 1927 As An Alternative To Awarding Attorney’S Fees Under Section 505 Of The Copyright Act, David E. Shipley

Journal of Intellectual Property Law

The United States Supreme Court’s 2016 decision in Kirtsaeng v. John Wiley & Sons resolved a disagreement over when it is appropriate to award attorney’s fees to a prevailing defendant under section 505 of the Copyright Act, and ended a perceived venue advantage for losing plaintiffs in some jurisdictions. The Court ruled unanimously that courts are correct to give substantial weight to the question of whether the losing side had a reasonable case to fight, but that the objective reasonableness of that side’s position does not give rise to a presumption against fee shifting. It made clear that other factors …

Disbelief Doctrines, Sandra F. Sperino

Faculty Articles and Other Publications

Employment discrimination law is riddled with doctrines that tell courts to believe employers and not workers. Judges often use these disbelief doctrines to dismiss cases at the summary judgment stage. At times, judges even use them after a jury trial to justify nullifying jury verdicts in favor of workers.

This article brings together many disparate discrimination doctrines and shows how they function as disbelief doctrines, causing courts to believe employers and not workers. The strongest disbelief doctrines include the stray comments doctrine, the same decisionmaker inference, and the same protected class inference. However, these are not the only ones. Even …

Civil Procedure: You've Been Served . . . Or Have You?—Jaeger V. Palladium Holdings, Gus Cochran

Mitchell Hamline Law Review

No abstract provided.

Defense Against The Dark Arts Of Copyright Trolling, Matthew Sag, Jake Haskell

Faculty Publications & Other Works

In this Article, we offer both a legal and a pragmatic framework for defending against copyright trolls. Lawsuits alleging online copyright infringement by John Doe defendants have accounted for roughly half of all copyright cases filed in the United States over the past three years. In the typical case, the plaintiff's claims of infringement rely on a poorly substantiated form pleading and are targeted indiscriminately at noninfringers as well as infringers. This practice is a subset of the broader problem of opportunistic litigation, but it persists due to certain unique features of copyright law and the technical complexity of Internet …

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 …

Teaching And Learning Personal Jurisdiction After The Stealth Revolution, Deborah Challener

Journal Articles

In this Response [to Professor Michael Hoffheimer’s article The Stealth Revolution in Personal Jurisdiction], Professor Challener points out one additional cost of the stealth revolution: the substantially increased difficulty of teaching and learning the law of personal jurisdiction which, in turn, erodes law students’ confidence in the Supreme Court as an institution.

Florida's Controlling Summary Judgment Rule 1.510(C) Contrasted With The Common Law-Created Rule Grounded On Two Conflicted Federal Cases, H Michael Muñiz

St. Thomas Law Review

Florida litigators, who are familiar with the Florida Rules of Civil Procedure, should not be surprised that the prescribed, controlling procedural rule to be followed as well as for a Florida state trial court to adjudicate a motion for summary judgment ("MSJ") is presumptively set forth within Rule 1.510 of the modem-day Florida Rules of Civil Procedure. The current rule expressly provides, in material part, "the judgment sought must be rendered immediately if the pleadings and summary judgment evidence on file show that there is no genuine issue as to any material fact and that the moving party is entitled …

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

Articles by Maurer Faculty

No abstract provided.

The Narrative Of Costs, The Cost Of Narrative, Alexander A. Reinert

Articles

In Judge Victor Marrero’s Article “The Cost of Rules, the Rule of Costs,” he argues that too many lawyers use too many procedural devices to cause too much inefficiency within our civil justice system. His Article helpfully asks us to focus on the role of the lawyer and law firm economics in assessing how to solve waste and abuse in civil litigation. He proposes an array of procedural changes to address these perceived problems. In this response, I argue that Judge Marrero’s assertions about costs are questionable, given relevant empirical evidence. Moreover, although I am confident that there are instances …

Preclusion Law As A Model For National Injunctions, Suzette M. Malveaux

Publications

No abstract provided.

The Logic And Limits Of Event Studies In Securities Fraud Litigation, Jill E. Fisch, Jonah B. Gelbach, Jonathan Klick

All Faculty Scholarship

Event studies have become increasingly important in securities fraud litigation after the Supreme Court’s decision in Halliburton II. Litigants have used event study methodology, which empirically analyzes the relationship between the disclosure of corporate information and the issuer’s stock price, to provide evidence in the evaluation of key elements of federal securities fraud, including materiality, reliance, causation, and damages. As the use of event studies grows and they increasingly serve a gatekeeping function in determining whether litigation will proceed beyond a preliminary stage, it will be critical for courts to use them correctly.

This Article explores an array of …