Law Commons^™

Redeeming The Missed Opportunities Of Shady Grove, Stephen B. Burbank, Tobias Barrington Wolff

All Faculty Scholarship

Shady Grove Orthopedic Associates v. Allstate Insurance Co., a closely watched case decided in the 2009–10 Term, presented the Court with an opportunity to speak to two related problems under the Rules Enabling Act that have languished for decades without proper resolution. The first involves a broad interpretive question: How can the limitations on rulemaking authority contained in the Act be applied in a manner that reflects the separation-of-powers concerns that animated them while also exhibiting respect for the state regulatory arrangements that govern much of our economic and social activity? The second problem involves the intersection of the …

Sovereign Litigants: Native American Nations In Court, Catherine T. Struve

All Faculty Scholarship

No abstract provided.

Quasi-Preemption: Nervous Breakdown In Our Constitutional System, Geoffrey C. Hazard Jr.

All Faculty Scholarship

No abstract provided.

Disputing Limited Liability, Christina L. Boyd, David A. Hoffman

All Faculty Scholarship

This project presents six years of hand-collected federal district court data to analyze the first representative sample of veil piercing litigation. Our method identifies veil piercing complaints through Westlaw's trial pleadings database and codes each case through a detailed examination of PACER records. We test a variety of hypotheses to understand how such litigations are resolved. We find that plaintiffs succeed quite often in veil piercing litigation, if success is defined as winning on motions that do not terminate a case. A variety of legal and extra-legal factors predict such interstitial veil piercing successes. Voluntary creditor causes of action promote …

A Wise Man Of The Law, Anthony J. Scirica

All Faculty Scholarship

No abstract provided.

The Pleading Problem In Antitrust Cases And Beyond, Herbert J. Hovenkamp

All Faculty Scholarship

In its Twombly decision the Supreme Court held that an antitrust complaint failed because its allegations did not include enough “factual matter” to justify proceeding to discovery. Two years later the Court extended this new pleading standard to federal complaints generally. Twombly’s broad language has led to a broad rewriting of federal pleading doctrine.

Naked market division conspiracies such as the one pled in Twombly must be kept secret because antitrust enforcers will prosecute them when they are detected. This inherent secrecy, which the Supreme Court did not discuss, has dire consequences for pleading if too much factual specificity …

Summary Judgment, Pleading, And The Future Of Transsubstantive Procedure, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Time And The Courts: What Deadlines And Their Treatment Tell Us About The Litigation System, Catherine T. Struve

All Faculty Scholarship

No abstract provided.

Shifting Burdens: Discrimination Law Through The Lens Of Jury Instructions, Catherine T. Struve

All Faculty Scholarship

This Term, in Gross v. FBL Financial Services, Inc., the U.S. Supreme Court held the Price Waterhouse burden-shifting framework inapplicable to Age Discrimination in Employment Act (“ADEA”) claims. This Article finds the Gross Court’s rationales for repudiating Price Waterhouse v. Hopkins unpersuasive. Although the crux of the Court’s argument is that it is too confusing to instruct a jury on the burden-shifting framework, in actuality, there is no evidence that burden-shifting instructions are unduly confusing. In fact, Gross will exacerbate a different sort of confusion: that which arises when a jury must resolve two claims under different burden frameworks. At …

Geoffrey C. Hazard, Jr.: Scholar, Law Reformer, Teacher, And Mentor, Catherine T. Struve

All Faculty Scholarship

No abstract provided.

Foreword: Procedure As Palimpsest, Catherine T. Struve

All Faculty Scholarship

No abstract provided.