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Full-Text Articles in Law
The False Promise Of General Jurisdiction, Maggie Gardner Gardner, Pamela K. Bookman, Andrew Bradt, Zachary Clopton, D. Theodore Rave
The False Promise Of General Jurisdiction, Maggie Gardner Gardner, Pamela K. Bookman, Andrew Bradt, Zachary Clopton, D. Theodore Rave
Faculty Scholarship
The Supreme Court has said that general jurisdiction provides at least one clear and certain forum to sue defendants, and that assumption has begun to shape the Court’s understanding of specific jurisdiction. But that assumption is wrong. General jurisdiction does not provide a guaranteed U.S. forum for foreign defendants or in cases involving multiple defendants. And even when defendants can be sued “at home,” such cases may be (and not infrequently are) dismissed for forum non conveniens, sometimes even when no alternative forum is available.
Nor is a regime reliant on a general jurisdiction backstop desirable. The Court’s narrowed version …
A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan
A Tale Of Two Civil Procedures, Pamela K. Bookman, Colleen F. Shanahan
Faculty Scholarship
In the United States, there are two kinds of courts: federal and state. Civil procedure classes and scholarship tend to focus on the federal, but refer to and make certain assumptions about state courts. While this dichotomy makes sense when discussing some issues, like federal subject matter jurisdiction, for many aspects of procedure this breakdown can be misleading. When understanding American civil justice, two different categories of courts are just as salient: those that routinely include lawyers, and those where lawyers are fundamentally absent.
This essay urges civil procedure teachers and scholars to think about our courts as “lawyered” courts—which …
Communication And Competence For Self-Representation, E. Lea Johnston
Communication And Competence For Self-Representation, E. Lea Johnston
Fordham Law Review
In Indiana v. Edwards, the U.S. Supreme Court held that states may impose a higher competency standard for self-representation than to stand trial in criminal cases. While the Court articulated a number of interests relevant to representational competence, it left to states the difficult task of formulating an actual competence standard. This Article offers the first examination and assessment of the constitutionality of state standards post-Edwards. It reveals that seven states have endorsed a representational competence standard with a communication component. Additionally, twenty states have embraced vague, capacious standards that could consider communication skills. In applying these standards, states …
Procedural Triage, Matthew J.B. Lawrence
Procedural Triage, Matthew J.B. Lawrence
Fordham Law Review
Prior scholarship has assumed that the inherent value of a "day in court" is the same for all claimants, so that when procedural resources (like a jury trial or a hearing) are scarce, they should be rationed the same way for all claimants. That is incorrect. This Article shows that the inherent value of a "day in court" can be far greater for some claimants, such as first-time filers, than for others, such as corporate entities and that it can be both desirable and feasible to take this variation into account in doling out scarce procedural protections. In other words, …
The Proper Standard Of Review For Required Party Determinations Under Federal Rule Of Civil Procedure 19, Brandon R. Coyle
The Proper Standard Of Review For Required Party Determinations Under Federal Rule Of Civil Procedure 19, Brandon R. Coyle
Fordham Law Review
Rule 19 of the Federal Rules of Civil Procedure, concerning the required joinder of parties, ensures that all parties with an interest in an action are joined in the litigation. At any time during the suit, a court may determine that an absent party has a specific interest that requires its presence in the dispute. When the court cannot join the absent party, however, the court must use Rule 19(b) to determine whether to continue the litigation without the absentee or dismiss the suit entirely. Despite the potentially drastic consequence of dismissal, federal courts of appeals cannot agree on the …
Recent Trends In Discovery In Arbitration And In The Federal Rules Of Civil Procedure, Paul Radvany
Recent Trends In Discovery In Arbitration And In The Federal Rules Of Civil Procedure, Paul Radvany
Faculty Scholarship
No abstract provided.
9(B) Or Not 9(B)? That Is The Question: How To Plead Negligent Misrepresentation In The Post-Twombly Era, Andrew Todres
9(B) Or Not 9(B)? That Is The Question: How To Plead Negligent Misrepresentation In The Post-Twombly Era, Andrew Todres
Fordham Law Review
Perhaps nothing is more important to a litigant bringing an action in federal court than knowing the relevant pleading standard for his or her underlying claims. Ever since the inception of the Federal Rules of Civil Procedure, one of two pleading standards have applied to common law claims: the Rule 8(a)(2) standard, requiring a short and plain statement demonstrating entitlement to relief, or the Rule 9(b) standard, demanding that allegations of fraud or mistake be pled with particularity. At the intersection of these two pleading standards is the common law claim of negligent misrepresentation. Courts across the country have long …
O Sonia, Where Art Thou?: Why Justice Sotomayor's Silent "Opinion" Should Serve As Shady Grove's Holding, Craig T. Cagney
O Sonia, Where Art Thou?: Why Justice Sotomayor's Silent "Opinion" Should Serve As Shady Grove's Holding, Craig T. Cagney
Fordham Law Review
Since the Supreme Court decided the case in 1938, Erie Railroad Co. v. Tompkins has limited the application of the Federal Rules of Civil Procedure. By changing shape, Erie has eluded the Court's attempts to curb its influence for most of the past century. Only recently, in Shady Grove Orthopedic Associates, P.A. v. Allstate Insurance Co., did the Court manage to apply a Federal Rule over Erie's contrary command to apply state law, but that decision so divided the Court that no one opinion enjoyed the support of five Justices. The resulting confusion among the lower courts over which should …
Connecting Self-Representation To Civil Gideon: What Existing Data Reveal About When Counsel Is Most Needed, Russell Engler
Connecting Self-Representation To Civil Gideon: What Existing Data Reveal About When Counsel Is Most Needed, Russell Engler
Fordham Urban Law Journal
Over the past decade, the phenomenon of self-representation in civil cases has led to the development of programs designed to facilitate self-representation. A revitalized movement seeking to establish a civil right to counsel has emerged (civil Gideon, a civil right to counsel based on Gideon v. Wainwright), pressing for the expansion of the availability of counsel for the poor. What are the scenarios in which full representation by counsel is most needed? Part of this question involves policy choices as to the importance of what is at stake in the proceeding. Part of this question, however, is a research question: …
Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau
Muscular Procedure: Conditional Deference In The Executive Detention Cases, Joseph Landau
Faculty Scholarship
Although much of the prevailing scholarship surrounding the 9/11 decisions tends to downgrade procedural decisions of law as weak and inadequate, procedural rulings have affected the law of national security in remarkable ways. The Supreme Court and lower courts have used procedural devices to require, as a condition of deference, that the coordinate branches respect transsubstantive procedural values like transparency and deliberation. This is “muscular procedure,” the judicial invocation of a procedural rule to ensure the integrity of coordinate branch decision-making processes. Through muscular procedure, courts have accelerated the resolution of large numbers of highly charged cases. Moreover, they have …
The Dog That Didn't Bark: Stealth Procedures And The Erosion Of Stare Decisis In The Federal Courts Of Appeal, Amy E. Sloan
The Dog That Didn't Bark: Stealth Procedures And The Erosion Of Stare Decisis In The Federal Courts Of Appeal, Amy E. Sloan
Fordham Law Review
Informal en banc review is a procedural expedient that nine of the the thirteen federal circuits use to circumvent the requirements of formal en banc review. Panels invoke informal en banc review to overrule prior panel precdent in contravention of the law of the circuit rule, as well as to take other actions normally reserved for the full court sitting en banc. The circuits taht use informal en banc review say the procedure is to be used rarely. In practice, however, the frequency of informal in banc review is significant when compared with formal en banc review. Informal en banc …
The Burden Of Proving Jurisdiction Under The Federal Tort Claims Act: A Uniform Approach To Allocation, Ugo Colella, Adam Bain
The Burden Of Proving Jurisdiction Under The Federal Tort Claims Act: A Uniform Approach To Allocation, Ugo Colella, Adam Bain
Fordham Law Review
No abstract provided.
"Nice Work If You Can Get It": "Ethical" Jury Selection In Criminal Defense, Abbe Smith
"Nice Work If You Can Get It": "Ethical" Jury Selection In Criminal Defense, Abbe Smith
Fordham Law Review
No abstract provided.
Philip D. Reed Professorship In Civil Justice And Dispute Resolution, Roundtable Discussion, The Future Of Class Actions In Mass Tort Cases
Fordham Law Review
The Roundtable Discussion was held on September 25, 1997 at Fordham University School of Law
Modern Mass Tort Litigation, Prior Action Depositions And Practice Sensitive Procedure, Mitchell A. Lowenthal, Howard M. Erichson
Modern Mass Tort Litigation, Prior Action Depositions And Practice Sensitive Procedure, Mitchell A. Lowenthal, Howard M. Erichson
Fordham Law Review
No abstract provided.
A New Trick From An Old And Abused Dog: Section 1441(C) Lives And Now Permits The Remand Of Federal Question Cases, Edward Hartnett
A New Trick From An Old And Abused Dog: Section 1441(C) Lives And Now Permits The Remand Of Federal Question Cases, Edward Hartnett
Fordham Law Review
No abstract provided.
The Class Action Dilemma: The Certification Of Classes Seeking Equitable Relief And Monetary Damages After Ticor Title Insurance Co. V. Brown, Lawrence J. Restieri, Jr.
The Class Action Dilemma: The Certification Of Classes Seeking Equitable Relief And Monetary Damages After Ticor Title Insurance Co. V. Brown, Lawrence J. Restieri, Jr.
Fordham Law Review
No abstract provided.
Charging Parties Left Out: Intervention In Section 10(J) National Labor Relations Act Injunction Proceedings, John D. Doyle, Jr.
Charging Parties Left Out: Intervention In Section 10(J) National Labor Relations Act Injunction Proceedings, John D. Doyle, Jr.
Fordham Urban Law Journal
Federal Rule of Civil Procedure 24(a)(2) entitles charging parties to intervene as of right in Section 10(j) proceedings for preliminary injunctive relief. The Scottex court's analysis and its determination that the charging party's Rule 24(a)(2) motion to intervene was due to be granted, were correct. The Scottex analysis comports with the federal labor law scheme and is the only analysis that takes proper account of the Supreme Court's decision in Trbovich. Moreover, it is the only analysis that is consistent with the text and purposes of both Rule 24(a)(2) and Section 100.
Trends In Protective Orders Under Federal Rule Of Civil Procedure 26(C): Why Some Cases Fumble While Others Score , Jacqueline S. Guenego
Trends In Protective Orders Under Federal Rule Of Civil Procedure 26(C): Why Some Cases Fumble While Others Score , Jacqueline S. Guenego
Fordham Law Review
No abstract provided.
Sanctions, Symmetry, And Safe Harbors: Limiting Misapplication Of Rule 11 By Harmonizing It With Pre-Verdict Dismissal Devices, Jeffrey W. Stempel
Sanctions, Symmetry, And Safe Harbors: Limiting Misapplication Of Rule 11 By Harmonizing It With Pre-Verdict Dismissal Devices, Jeffrey W. Stempel
Fordham Law Review
No abstract provided.
Standard Of Appellate Review Of Rule 11 Decisions, Louis Greco
Standard Of Appellate Review Of Rule 11 Decisions, Louis Greco
Fordham Law Review
No abstract provided.
Settlement Pending Appeal: An Argument For Vacatur, Henry E. Klingeman
Settlement Pending Appeal: An Argument For Vacatur, Henry E. Klingeman
Fordham Law Review
No abstract provided.
Discovery Under The Federal Rules Of Civil Procedure Of Attorney Opinion Work Product Provided To An Expert Witness, Bryan Lewis
Discovery Under The Federal Rules Of Civil Procedure Of Attorney Opinion Work Product Provided To An Expert Witness, Bryan Lewis
Fordham Law Review
No abstract provided.
Preclusion Concerns As An Additional Factor When Staying A Federal Suit In Deference To A Concurrent State Proceeding, David J. Mccarthy
Preclusion Concerns As An Additional Factor When Staying A Federal Suit In Deference To A Concurrent State Proceeding, David J. Mccarthy
Fordham Law Review
No abstract provided.
N.Y. General Municipal Law Section 50-E(5): Ameliorating New York's Notice Of Claim Requirements, Lawrence M. Nessenson, Lawrence M. Nessenson, Lawrence M. Nessenson, Lawrence M. Nessenson
N.Y. General Municipal Law Section 50-E(5): Ameliorating New York's Notice Of Claim Requirements, Lawrence M. Nessenson, Lawrence M. Nessenson, Lawrence M. Nessenson, Lawrence M. Nessenson
Fordham Urban Law Journal
A multitude of provisions scattered throughout New York's consolidated and unconsolidated laws require that plaintiffs serve "notice of claim" of their tort actions on defendant public corporations. New York General Municipal Law section 50-e governs New York procedure for serving this notice of claim upon public corporations including when and upon whom service should be made, the form and contents of the notice of claim, and how notice of claim may be served. Compliance with the requirements of section 50-e is a condition precedent to commencement of a tort action against a public corporation wherever such notice of claim is …
Denial Of A Pro Se Litigant's Motion To Appoint Counsel: The Preclusive Effect Of Refusing Immediate Review, Nicolas Swerdloff
Denial Of A Pro Se Litigant's Motion To Appoint Counsel: The Preclusive Effect Of Refusing Immediate Review, Nicolas Swerdloff
Fordham Law Review
No abstract provided.
Quasi In Rem On The Heels Of Shaffer V. Heitner: If International Shoe Fits . . ., Suzanne T. Marquard
Quasi In Rem On The Heels Of Shaffer V. Heitner: If International Shoe Fits . . ., Suzanne T. Marquard
Fordham Law Review
No abstract provided.