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Articles 1 - 24 of 24
Full-Text Articles in Law
Uniformity In Procedural Rules And The Attributes Of A Sound Procedural System: The Case For Presumptive Limits, Stephen Subrin
Uniformity In Procedural Rules And The Attributes Of A Sound Procedural System: The Case For Presumptive Limits, Stephen Subrin
Stephen N. Subrin
No abstract provided.
Uniformity In Procedural Rules And The Attributes Of A Sound Procedural System: The Case For Presumptive Limits, Stephen Subrin
Uniformity In Procedural Rules And The Attributes Of A Sound Procedural System: The Case For Presumptive Limits, Stephen Subrin
Stephen N. Subrin
No abstract provided.
On Thinking About A Description Of A Country's Civil Procedure, Stephen Subrin
On Thinking About A Description Of A Country's Civil Procedure, Stephen Subrin
Stephen N. Subrin
No abstract provided.
Procedure, Politics, Prediction, And Professors: A Response To Professors Burbank And Purcell, Stephen Subrin
Procedure, Politics, Prediction, And Professors: A Response To Professors Burbank And Purcell, Stephen Subrin
Stephen N. Subrin
In this article I comment on four themes in the work of Stephen Burbank and Edward Purcell, two of the leading scholars of American civil procedure and procedural reform: (1) the relationship of substantive and procedural law; (2) the place of politics in procedural reform; (3) the difficulty of reliably predicting consequences of procedural reform; and (4) challenges that the Class Action Fairness Act of 2005 (CAFA) and similar reforms present for law professors, both in their roles as researchers and writers, and as teachers of would-be lawyers.
Thoughts On Misjudging Misjudging, Stephen Subrin
Thoughts On Misjudging Misjudging, Stephen Subrin
Stephen N. Subrin
No abstract provided.
A Traditionalist Looks At Mediation: It's Here To Stay And Much Better Than I Thought, Stephen Subrin
A Traditionalist Looks At Mediation: It's Here To Stay And Much Better Than I Thought, Stephen Subrin
Stephen N. Subrin
No abstract provided.
Discovery In Global Perspective: Are We Nuts?, Stephen Subrin
Discovery In Global Perspective: Are We Nuts?, Stephen Subrin
Stephen N. Subrin
No abstract provided.
A Traditionalist Looks At Mediation: It's Here To Stay And Much Better Than I Thought, Stephen Subrin
A Traditionalist Looks At Mediation: It's Here To Stay And Much Better Than I Thought, Stephen Subrin
Stephen N. Subrin
No abstract provided.
Thoughts On Misjudging Misjudging, Stephen Subrin
Thoughts On Misjudging Misjudging, Stephen Subrin
Stephen N. Subrin
No abstract provided.
Federal Rules, Local Rules, And State Rules: Uniformity, Divergence, And Emerging Procedural Patterns, Stephen Subrin
Federal Rules, Local Rules, And State Rules: Uniformity, Divergence, And Emerging Procedural Patterns, Stephen Subrin
Stephen N. Subrin
No abstract provided.
Preface: Symposium: The 50th Anniversary Of The Federal Rules Of Civil Procedure, 1938-1988, Stephen Subrin
Preface: Symposium: The 50th Anniversary Of The Federal Rules Of Civil Procedure, 1938-1988, Stephen Subrin
Stephen N. Subrin
No abstract provided.
Procedure, Politics, Prediction, And Professors: A Response To Professors Burbank And Purcell, Stephen Subrin
Procedure, Politics, Prediction, And Professors: A Response To Professors Burbank And Purcell, Stephen Subrin
Stephen N. Subrin
In this article I comment on four themes in the work of Stephen Burbank and Edward Purcell, two of the leading scholars of American civil procedure and procedural reform: (1) the relationship of substantive and procedural law; (2) the place of politics in procedural reform; (3) the difficulty of reliably predicting consequences of procedural reform; and (4) challenges that the Class Action Fairness Act of 2005 (CAFA) and similar reforms present for law professors, both in their roles as researchers and writers, and as teachers of would-be lawyers.
Federal Rules, Local Rules, And State Rules: Uniformity, Divergence, And Emerging Procedural Patterns, Stephen Subrin
Federal Rules, Local Rules, And State Rules: Uniformity, Divergence, And Emerging Procedural Patterns, Stephen Subrin
Stephen N. Subrin
No abstract provided.
How Equity Conquered Common Law: The Federal Rules Of Civil Procedure In Historical Perspective, Stephen Subrin
How Equity Conquered Common Law: The Federal Rules Of Civil Procedure In Historical Perspective, Stephen Subrin
Stephen N. Subrin
Part I of this Article first looks at the major components of common law and equity procedure, and then examines the domination of an equity mentality in the Federal Rules. Part II explores the American procedural experience before the twentieth century, and demonstrates how David Dudley Field and his 1848 New York Code were tied to a common law procedural outlook. Part III concentrates on Roscoe Pound (who initiated the twentieth century procedural reform effort), Thomas Shelton (who led the American Bar Association Enabling Act Movement), and Charles Clark (the major draftsman of the Federal Rules). Through understanding these men …
Preface: Symposium: The 50th Anniversary Of The Federal Rules Of Civil Procedure, 1938-1988, Stephen Subrin
Preface: Symposium: The 50th Anniversary Of The Federal Rules Of Civil Procedure, 1938-1988, Stephen Subrin
Stephen N. Subrin
No abstract provided.
On Thinking About A Description Of A Country's Civil Procedure, Stephen Subrin
On Thinking About A Description Of A Country's Civil Procedure, Stephen Subrin
Stephen N. Subrin
No abstract provided.
The Limitations Of Transsubstantive Procedure: An Essay On Adjusting The "One Size Fits All" Assumption, Stephen Subrin
The Limitations Of Transsubstantive Procedure: An Essay On Adjusting The "One Size Fits All" Assumption, Stephen Subrin
Stephen N. Subrin
In this Essay, I explain both the nineteenth and twentieth century decisions to adopt transsubstantive procedure, borrowing from equity as the model. I then discuss the strengths and weaknesses of the transsubstantive/equity decision, and why, on balance, I think the combined decision needs readjustment. I end with suggestions for change, including a simpler procedural track for some cases and non-binding protocols for discovery and other procedural incidents for some of the more expansive and expensive case-types.
David Dudley Field And The Field Code: A Historical Analysis Of An Earlier Procedural Vision, Stephen Subrin
David Dudley Field And The Field Code: A Historical Analysis Of An Earlier Procedural Vision, Stephen Subrin
Stephen N. Subrin
No abstract provided.
Substance In The Shadow Of Procedure: The Integration Of Substantive And Procedural Law In Title Vii Cases, Phyllis Tropper Baumann, Judith Olans Brown, Stephen Subrin
Substance In The Shadow Of Procedure: The Integration Of Substantive And Procedural Law In Title Vii Cases, Phyllis Tropper Baumann, Judith Olans Brown, Stephen Subrin
Stephen N. Subrin
During the first fifty years of the twentieth century, several suppositions developed about the ideal civil procedure and its appropriate relationship to substantive law. This article questions those suppositions with respect to cases arising under title VII of the Civil Rights Act of 1964. We begin Section II of the article with a brief overview of the purpose and legislative history of title VII of the Civil Rights Act of 1964. Sections III and IV examine the structure of title VII and the claims brought under it, and discuss the prima facie case, burdens of proof, pleadings and discovery. Section …
Fudge Points And Thin Ice In Discovery Reform And The Case For Selective Substance-Specific Procedure, Stephen Subrin
Fudge Points And Thin Ice In Discovery Reform And The Case For Selective Substance-Specific Procedure, Stephen Subrin
Stephen N. Subrin
When procedural reformers and commentators on reform write about procedure-- and I count myself among them-- we display similar proclivities. We must take a position to write effectively. It is difficult to write articles or speeches without a thesis. In articulating the thesis, one tends to break off the rough edges, submerge counter-arguments, and blunt potential opposition by exaggerating opposing claims, ignoring counter-evidence, using feigned accomodation, or writing illogically. Frequently, at key points in our arguments we tend to do a little fudging, particularly at a juncture where the ice is thin.
I have searched for more eloquence, but "fudge …
Fishing Expeditions Allowed: The Historical Background Of The 1938 Federal Discovery Rules, Stephen Subrin
Fishing Expeditions Allowed: The Historical Background Of The 1938 Federal Discovery Rules, Stephen Subrin
Stephen N. Subrin
Prior to the Federal Rules of Civil Procedure ("Federal Rules"), discovery in civil cases in federal court was severly limited. The Federal Rules discovery provisions dramatically increased the potential for discovery. Authorized by the Rules Enabling Act of 1934 ("Enabling Act"), the Federal Rules became law in 1938. The Enabling Act was preceded by a twenty-three year battle, spearheaded primarily by a committee of the American Bar Association. During the Enabling Act debate, discovery was largely ignored. Attitudes about discovery changed significantly between 1932 and 1946. This paper addresses the questions of how and why the change occurred, what reservations …
Notice And The Right To Be Heard: The Significance Of Old Friends, Stephen Subrin, Richard Dykstra
Notice And The Right To Be Heard: The Significance Of Old Friends, Stephen Subrin, Richard Dykstra
Stephen N. Subrin
Judges and advocates have been called upon to consider novel questions concerning the applicability of the ancient legal requirements of notice and hearing. Our purpose here is to analyze the importance of providing people with the procedural protections that notice and a hearing represent. We begin with an attempt to articulate the purposes served by requiring notice and an opportunity for a hearing. We next consider some traditional and modern limitations on those requirements and inquire whether they are justified in light of our functional analysis. The relationship between our formulation and several landmark decisions handed down by the Supreme …
Ashcroft V. Iqbal: Contempt For Rules, Statutes, The Constitution, And Elemental Fairness, Stephen Subrin
Ashcroft V. Iqbal: Contempt For Rules, Statutes, The Constitution, And Elemental Fairness, Stephen Subrin
Stephen N. Subrin
We were asked to write about one of the worst United States Supreme Court opinions we had read. My article is about Ashcroft v. Iqbal because it is such an important decision in the field of federal civil litigation and the majority opinion is unsupportable in so many different ways. I explain how that opinion changes the substantive law of supervisory liability for government officials without providing the parties notice that the issue would be considered by the Court. The majority then enshrines fact pleading requirements in federal court for all cases (although denying they have done so), without following …
Litigation And Democracy: Restoring A Realistic Prospect Of Trial, Stephen Subrin, Stephen B. Burbank
Litigation And Democracy: Restoring A Realistic Prospect Of Trial, Stephen Subrin, Stephen B. Burbank
Stephen N. Subrin
In this essay we review some of the evidence confirming, and some of the reasons underlying, the phenomenon of the vanishing trial in federal civil cases and examine some of the costs of that phenomenon for democratic values, including in particular democratic values represented by the right to a jury trial under the Seventh Amendment. We discuss the Supreme Court’s recent pleading decisions in Twombly and Iqbal as examples of procedural attacks on democracy in four dimensions: (1) they put the right to jury trial in jeopardy; (2) they undercut the effectiveness of congressional statutes designed to compensate citizens for …