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Full-Text Articles in Law

Procedural Wrongdoing, Matthew A. Shapiro Nov 2022

Procedural Wrongdoing, Matthew A. Shapiro

BYU Law Review

Both the practice and the study of civil justice are rife with accusations of litigation “abuse.” Although it’s tempting to dismiss all this abuse talk as merely rhetorical, the concept of abuse in fact has deep roots in the normative structure of civil procedure’s doctrinal apparatus for regulating parties’ wrongful litigation conduct — their procedural wrongdoing. Prior accounts of procedural wrongdoing have maintained that parties abuse the civil justice system whenever they violate a procedural rule that’s calibrated to maximize the net benefits of litigation. Such accounts, however, ignore the many rules that define procedural wrongdoing not in terms of …


Class Actions, Jurisdiction, And Principle In Doctrinal Design, David Marcus, Will Ostrander Sep 2020

Class Actions, Jurisdiction, And Principle In Doctrinal Design, David Marcus, Will Ostrander

BYU Law Review

No abstract provided.


The (Surprisingly) Prevalent Role Of States In An Era Of Federalized Class Actions, Linda S. Mullenix Sep 2020

The (Surprisingly) Prevalent Role Of States In An Era Of Federalized Class Actions, Linda S. Mullenix

BYU Law Review

In enacting the Class Action Fairness Act of 2005 (CAFA), Congress intended to expand access to the federal courts for interstate class actions by creating minimal diversity and removal jurisdiction. In Section 2 of the Act, “Findings and Purposes,” Congress stated that class action abuses undermined “the concept of diversity jurisdiction as intended by the Framers of the United States Constitution” in that state courts kept cases of national importance out of federal court and sometimes demonstrated bias against out-of-state defendants. Congress stated that a purpose of CAFA was to “restore the intent of the framers of the United States …


Adversary Breakdown And Judicial Role Confusion In “Small Case” Civil Justice, Jessica K. Steinberg Apr 2016

Adversary Breakdown And Judicial Role Confusion In “Small Case” Civil Justice, Jessica K. Steinberg

BYU Law Review

This Article calls attention to the breakdown of adversary procedure in a largely unexplored area of the civil justice system: the ordinary, twoparty case. The twenty-first century judge confronts an entirely new state of affairs in presiding over the average civil matter. In place of the adversarial party contest, engineered and staged by attorneys, judges now face the rise of an unrepresented majority unable to propel claims, facts, and evidence into the courtroom. The adversary ideal favors a passive judge, but the unrealistic demands of such a paradigm in today’s “small case” civil justice system have sparked role confusion among …


Reviving The Civil Jury Trial: Implementing Short, Summary, And Expedited Trial Programs, Robert A. Patterson Oct 2014

Reviving The Civil Jury Trial: Implementing Short, Summary, And Expedited Trial Programs, Robert A. Patterson

BYU Law Review

No abstract provided.


Trans-Substantivity And The Processes Of American Law, David Marcus Feb 2014

Trans-Substantivity And The Processes Of American Law, David Marcus

BYU Law Review

The term “trans-substantive” refers to doctrine that, in form and manner of application, does not vary from one substantive context to the next. Trans-substantivity has long influenced the design of the law of civil procedure, and whether the principle should continue to do so has prompted a lot of debate among scholars. But this focus on civil procedure is too narrow. Doctrines that regulate all the processes of American law, from civil litigation to public administration, often hew to a trans-substantive norm. This Article draws upon administrative law, the doctrine of statutory interpretation, and the law of civil procedure to …


Excessive Or Warranted? The Unshackling Of Discovery Sanctions In Lee V. Max International, Llc, Daniel S. Mehr Iii May 2012

Excessive Or Warranted? The Unshackling Of Discovery Sanctions In Lee V. Max International, Llc, Daniel S. Mehr Iii

BYU Law Review

No abstract provided.


Procedural Due Process And Predictable Punitive Damage Awards, Jill Wieber Lens Mar 2012

Procedural Due Process And Predictable Punitive Damage Awards, Jill Wieber Lens

BYU Law Review

In Exxon Shipping Co. v. Baker, the Supreme Court’s most recent opinion on punitive damage awards, the Court declared that the real problem with punitive damage awards is their “stark unpredictability.” The Court abandoned all hope that common law jury instructions could produce predictable punitive damage awards. Instead, the Court suggested pegging punitive damage awards to compensatory damage awards. So far, analysis of the opinion has been minimal, likely due to the purported maritime law basis of the holding. Exxon should not be overlooked, however, as it signals a resurgence of procedural due process as a basis for challenging punitive …


Making Appearances Matter: Recusal And The Appearance Of Bias, Dmitry Bam May 2011

Making Appearances Matter: Recusal And The Appearance Of Bias, Dmitry Bam

BYU Law Review

No abstract provided.


Reaping The Benefits Of Class Cerification: How And When Should "Significant Proof" Be Required Post-Dukes?, Julie Slater May 2011

Reaping The Benefits Of Class Cerification: How And When Should "Significant Proof" Be Required Post-Dukes?, Julie Slater

BYU Law Review

No abstract provided.


But What If The Court Reporter Is Lying? The Right To Confront Hidden Declarants Found In Transcripts Of Former Testimony, Peter Nicolas Nov 2010

But What If The Court Reporter Is Lying? The Right To Confront Hidden Declarants Found In Transcripts Of Former Testimony, Peter Nicolas

BYU Law Review

No abstract provided.


Saving Stare Decisis: Preclusion, Precedent, And Procedural Due Process, Max Minzner May 2010

Saving Stare Decisis: Preclusion, Precedent, And Procedural Due Process, Max Minzner

BYU Law Review

No abstract provided.


Just Go Away: Representation, Due Process, And Preclusion In Class Actions, Debra Lyn Bassett Dec 2009

Just Go Away: Representation, Due Process, And Preclusion In Class Actions, Debra Lyn Bassett

BYU Law Review

No abstract provided.


Refracting Domestic And Global Choice-Of-Forum Doctrine Through The Lens Of A Single Case, Richard D. Freer Nov 2007

Refracting Domestic And Global Choice-Of-Forum Doctrine Through The Lens Of A Single Case, Richard D. Freer

BYU Law Review

No abstract provided.


Who Gets Counted? Jury List Representativeness For Hispanics In Areas With Growing Hispanic Populations Under Duren V. Missouri, Stephen E. Reil Mar 2007

Who Gets Counted? Jury List Representativeness For Hispanics In Areas With Growing Hispanic Populations Under Duren V. Missouri, Stephen E. Reil

BYU Law Review

No abstract provided.


Constructing Class Action Reality, Debra Lyn Bassett Dec 2006

Constructing Class Action Reality, Debra Lyn Bassett

BYU Law Review

No abstract provided.


When Does A Party Prevail?: A Proposed "Third-Circuit-Plus" Test For Judicial Imprimatur, Matthew B. Tenney May 2005

When Does A Party Prevail?: A Proposed "Third-Circuit-Plus" Test For Judicial Imprimatur, Matthew B. Tenney

BYU Law Review

No abstract provided.


Reconsidering Absolute Prosecutorial Immunity, Margaret Z. Johns Mar 2005

Reconsidering Absolute Prosecutorial Immunity, Margaret Z. Johns

BYU Law Review

No abstract provided.


A Proposed Solution To Jury Confusion In Patent Infringement Cases Involving Means-Plus-Function Claims, Tony Caliendo Mar 2004

A Proposed Solution To Jury Confusion In Patent Infringement Cases Involving Means-Plus-Function Claims, Tony Caliendo

BYU Law Review

No abstract provided.


Advisory Juries And Their Use And Misuse In Federal Tort Claims Act Cases, Matthew L. Zabel Mar 2003

Advisory Juries And Their Use And Misuse In Federal Tort Claims Act Cases, Matthew L. Zabel

BYU Law Review

No abstract provided.


The Epistemology Of Admissibility: Why Even Good Philosophy Of Science Would Not Make For Good Philosophy Of Evidence, Brian Leiter Nov 1997

The Epistemology Of Admissibility: Why Even Good Philosophy Of Science Would Not Make For Good Philosophy Of Evidence, Brian Leiter

BYU Law Review

No abstract provided.


Expert Opinion Pleading: Any Merit To Special Certificates Of Merit?, Jeffrey A. Parness Sep 1997

Expert Opinion Pleading: Any Merit To Special Certificates Of Merit?, Jeffrey A. Parness

BYU Law Review

No abstract provided.


Extending The Due Process Clause To Prevent A Previously Recused Judge From Later Attempting To Affect The Case From Which He Was Recused, S. Matthew Cook May 1997

Extending The Due Process Clause To Prevent A Previously Recused Judge From Later Attempting To Affect The Case From Which He Was Recused, S. Matthew Cook

BYU Law Review

No abstract provided.


A Misapplication Of Daubert: Compton V. Subaru Of America Opens The Gate For Unreliable And Irrelevant Expert Testimony, Jonathan R. Schofield May 1997

A Misapplication Of Daubert: Compton V. Subaru Of America Opens The Gate For Unreliable And Irrelevant Expert Testimony, Jonathan R. Schofield

BYU Law Review

No abstract provided.


Mcknight V. Rees: Delineating The Qualified Immunity "Haves" And "Have-Nots" Among Private Parties, James L. Ahlstrom May 1997

Mcknight V. Rees: Delineating The Qualified Immunity "Haves" And "Have-Nots" Among Private Parties, James L. Ahlstrom

BYU Law Review

No abstract provided.


Pleading And Proof: The Economics Of Legal Burdens, Thomas R. Lee Mar 1997

Pleading And Proof: The Economics Of Legal Burdens, Thomas R. Lee

BYU Law Review

Courts have traditionally assigned burdens of pleading and burdens of proof by mechanically applying any of a number of meaningless "tests." Conventional doctrine assigns these burdens to the party to whose case the issue in question is "essential," or to the party who must establish the "affirmative proposition." Neither of these tests provides a coherent methodology for making such allocations. The first is circular-an issue is "essential" by virtue of the fact that the party has been assigned the burden. The latter is unworkable; it depends on accidents of syntax and may be easily manipulated. This Article attempts to fill …


Putting The Halper Genie Back In The Bottle: Examining United States U. Ursery In Light Of Halper, Austin, And Kurth Ranch, Sarah Jean Watterson Mar 1997

Putting The Halper Genie Back In The Bottle: Examining United States U. Ursery In Light Of Halper, Austin, And Kurth Ranch, Sarah Jean Watterson

BYU Law Review

No abstract provided.


How Modern Treatment Of 35 U.S.C. § 112(6) Has Caused Confusion: Hilton Davis V. Warner-Jenkinson And The Right To A Jury On The Issue Of Patent Infringement Under The "Equitable" Doctrine Of Equivalents, David R. Todd Mar 1996

How Modern Treatment Of 35 U.S.C. § 112(6) Has Caused Confusion: Hilton Davis V. Warner-Jenkinson And The Right To A Jury On The Issue Of Patent Infringement Under The "Equitable" Doctrine Of Equivalents, David R. Todd

BYU Law Review

No abstract provided.


The Sky Is Falling-The Ali's Efficient Response To Courts In Crisis?, Christine Gail Clark Sep 1995

The Sky Is Falling-The Ali's Efficient Response To Courts In Crisis?, Christine Gail Clark

BYU Law Review

No abstract provided.


Arthur Miller's Death Of A Doctrine Or Will The Federal Courts Abstain From Abstaining? The Complex Litigation Recommendations' Impact On The Abstention Doctrine, William A. Calhoun Ii Sep 1995

Arthur Miller's Death Of A Doctrine Or Will The Federal Courts Abstain From Abstaining? The Complex Litigation Recommendations' Impact On The Abstention Doctrine, William A. Calhoun Ii

BYU Law Review

No abstract provided.