Law Commons^™

International Law And Extraterritoriality: Brief Of International And Extraterritorial Law Scholars As Amici Curiae (U.S. V. Microsoft), Anthony J. Colangelo, Austen L. Parrish

Faculty Journal Articles and Book Chapters

Written by international and extraterritorial law scholars, the attached amicus brief was submitted in the U.S. v. Microsoft case. That case involves whether Congress, when it enacted the Stored Communications Act, intended to provide federal and local law enforcement authority to unilaterally seize the private email communications of foreign citizens stored abroad.

The amicus brief explains how the Charming Betsy canon and the law of extraterritoriality are part of a well-defined body of law the U.S. Supreme Court has developed for determining how American law applies abroad. These doctrines exist independently: one aims to avoid unsanctioned violations of international law. …

Cognitive Bias, The 'Band Of Experts,' And The Anti-Litigation Narrative, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable …

Pennoyer Strikes Back: Personal Jurisdiction In A Global Age, William V. Dorsaneo Iii

Faculty Journal Articles and Book Chapters

The primary purpose of this Article is to evaluate the four most recent Supreme Court decisions on personal jurisdiction and situate those decisions within the history of Supreme Court personal jurisdiction jurisprudence. Starting with the seminal case of Pennoyer v. Neff, personal jurisdiction jurisprudence has been remarkably kaleidoscopic,with the Supreme Court intervening at various intervals to redefine the law in broad strokes, while zigzagging from one doctrinal position to another and thereby leaving lower courts to hash out the application of an evolving personal jurisdiction doctrine to varying fact patterns. I will divide this jurisprudential history into two main groups …

Post-Kiobel Procedure: Subject Matter Jurisdiction Or Prescriptive Jurisdiction?, Anthony J. Colangelo, Christopher R. Knight

Faculty Journal Articles and Book Chapters

This essay evaluates whether Alien Tort Statute (ATS) cases involving foreign elements raise questions of prescriptive jurisdiction or subject matter jurisdiction after the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum. It concludes that the lower court trend treats Kiobel as going to subject matter jurisdiction, and that this trend is probably correct. It would have been helpful for the Supreme Court to clearly provide guidance on this question — which has major doctrinal and procedural consequences for the law and litigants. The procedural implications of viewing challenges based on Kiobel as going to judicial subject matter jurisdiction are …

Access To Counsel In Removal Proceedings: A Case Study For Exploring The Legal And Societal Imperative To Expand The Civil Right To Counsel, Carla L. Reyes

Faculty Journal Articles and Book Chapters

Although empirical evidence shows that a foreign national's chances of receiving a favorable ruling doubles when an attorney represents him or her in removal proceedings, a unique confluence of history, legal tradition and policy climate have restricted immigrants' access to counsel to a ten-day window in which the immigrant may seek representation of his or her own choosing at no expense to the government. Although removal proceedings are, by definition, civil proceedings, they nevertheless involve physical detention and the possibility of permanent removal from the United States. These circumstances make the immigration system a unique case study for exploration of …

Patent Misjoinder, David O. Taylor

Faculty Journal Articles and Book Chapters

The Leahy-Smith America Invents Act effectively repealed aspects of the Federal Rules of Civil Procedure by creating a new statutory section governing joinder of accused infringers and consolidation of actions for trial in most patent infringement cases. This new law codifies a substantial barrier to joinder and consolidation, contradicting two of the primary policies embraced by the drafters of the Federal Rules of Civil Procedure: the promotion of liberal standards both for evaluating the sufficiency of pleadings and for evaluating the propriety of joinder of parties. Remarkably, the new statutory section does so despite the absence of any detailed scholarly …

The History Of Texas Civil Procedure, William V. Dorsaneo Iii

Faculty Journal Articles and Book Chapters

The promulgation of rules of court by the Texas Supreme Court has been the principal mechanism for the regulation of proceedings in Texas courts. This article provides a historical overview of the development of these rules, the rule-making process, the impact of procedural rule-making on the administration of justice in Texas courts, and the continuing need for revision and reorganization of the Texas Rules of Civil Procedure. This article also acknowledges the enormous debt that is owed to the Texas judges, lawyers, and professors who have participated in the rule-making process, mostly without plaudits or even public recognition. In a …

A Community Of Procedure Scholars: Teaching Procedure And The Legal Academy, Elizabeth G. Thornburg, Erik S. Knutsen, Carla Crifo, Camille Cameron

Faculty Journal Articles and Book Chapters

This article asks whether the way in which procedure is taught has an impact on the extent and accomplishments of a scholarly community of proceduralists. Not surprisingly, we find a strong correlation between the placement of procedure as a required course in an academic context and the resulting body of scholars and scholarship. Those countries in which more civil procedure is taught as part of a university degree — and in which procedure is recognized as a legitimate academic subject — have larger scholarly communities, a larger and broader corpus of works analyzing procedural issues, and a richer web of …

The Alien Tort Statute And The Law Of Nations In Kiobel And Beyond, Anthony J. Colangelo

Faculty Journal Articles and Book Chapters

In Kiobel v. Royal Dutch Petroleum the U.S. Supreme Court wrongly applied a presumption against extraterritoriality to claims authorized by the Alien Tort Statute (ATS). Even assuming such a presumption properly could extend to the ATS and claims authorized thereunder, the presumption is easily overcome by Congress’s unambiguous instruction that the statute encompasses violations of “the law of nations,” which includes both substantive and jurisdictional components — including principles of extraterritorial jurisdiction. Early 19th Century case law and congressional reaction thereto clearly demonstrate that Congress expressly invoked “the law of nations” to overturn the Court’s imposition of a limiting presumption …

The Flawed Nexus Between Contract Law And The Rules Of Procedure: Why Rules 8 And 9 Must Be Changed, William V. Dorsaneo Iii, C. Paul Rogers Iii.

Faculty Journal Articles and Book Chapters

The primary purpose of this Article is to examine the relationship between basic contract principles and procedural rules that are generally applicable to contract litigation. The evolution of claims and defenses in contract cases has produced contradictions in burdens of pleading and proof in garden-variety contract cases,particularly with respect to the important issue of the plaintiffs performance. The continued evolution of substantive contract law and terminology, and the failure of the rule-making process to take these developments into account has exacerbated the problem. As a result, the federal pleading rules adopted in 1938 and many state procedural rules and statutes …

Law, Facts, And Power, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The Supreme Court’s opinion in Ashcroft v. Iqbal is wrong in many ways. This essay is about only one of them: the Court’s single-handed return to a pleading system that requires lawyers and judges to distinguish between pleading facts and pleading law. This move not only resuscitates a distinction purposely abandoned by the generation that drafted the Federal Rules of Civil Procedure, but also serves as an example of the very difficulties created by the distinction. The chinks in the law-fact divide are evident in Iqbal itself - both in the already notorious pleading section of the opinion, and in …

The U.S. Discovery-Eu Privacy Directive Conflict: Constructing A Three-Tiered Compliance Strategy, Carla L. Reyes

Faculty Journal Articles and Book Chapters

This note examines the conflicts of laws issue faced by trans-border civil litigants attempting to comply with both the U.S. Federal Rules of Civil Procedure and the requirements of the EU Privacy Directive. This note first sifts through the quagmire of regulations, and then attempts to help trans-border litigants view the U.S. discovery-EU data protection conflict through a transnational legal lens, and concludes by constructing a three-tiered strategy for compliance that respects U.S., EU and international law.

The Enigma Of Standing Doctrine In Texas Courts, William V. Dorsaneo Iii

Faculty Journal Articles and Book Chapters

This Article examines federal and Texas standing doctrine and makes recommendations for the principled application of the traditional non-jurisdictional approach of the procedural defense of standing under Texas law for common law claims and statutory rights of action and for the concomitant restriction of the jurisdictional aspects of standing to litigation brought by private persons and governmental units to enforce public rights or compel the performance of public duties. This Article also explains how the concepts of standing and capacity can be reconciled and harmonized.

Judicial Hellholes, Lawsuit Climates, And Bad Social Science: Lessons From West Virginia, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The American Tort Reform Association (ATRA) was founded in 1986 by the American Medical Association and American Council of Engineering Companies, and now has hundreds of corporate members. Every year, ATRA releases a list of Judicial Hellholes: court systems alleged to be unfair to defendants. The name is definitely catchy: the thought of a judicial hellhole invokes images of Kafka, Satan and the Queen of Hearts. No wonder ATRA's hellhole campaign has embedded itself in media vocabulary. And no wonder state courts and state legislatures bend over backwards to get out from under the hellhole label. Similarly, the U.S. Chamber …

Designer Trials, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article considers the intersection of freedom of contract and the trials that have not vanished. Could contracting parties effectively agree in advance of a dispute that any litigation of the case will comply with certain rules? Would such an agreement be enforced even in a contract of adhesion? If so, parties with sufficient bargaining leverage could design away many of the characteristics of litigation that they find unappealing, without the need to resort to private processes. The result: a designer trial with the procedural deck stacked in favor of the party with the greatest pre-dispute bargaining power.

Such a …

Just Say 'No Fishing': The Lure Of Metaphor, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The phrase "fishing expedition" is widely used in popular culture and in the law. In the case of metaphorical "fishing" in the law, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence a result. When used by the court, it is uninformative. Worse, the fishing metaphor may itself shape the way the court thinks about the kind of issue or claim involved. Accusations of "fishing" also affect the language and position of the litigants. Parties arguing against pleadings or discovery use the metaphor as a rhetorical weapon, stigmatizing their opponents, instead of …

Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

People thinking about contractual arbitration clauses usually envision the resulting disputes as contractual in nature. However, there is also a group of cases in which the clauses are used to compel arbitration of personal injury claims. This article examines those cases, including the impact of the Federal Arbitration Act on their enforcement. Next, the article considers the ways in which these pre-dispute, mandatory arbitration clauses can disturb the traditional values of procedural justice, contractual fairness, and the enforcement of tort-based duties. Finally, the article proposes changes in the law of arbitration and evaluates whether such changes are politically feasible.

Revision And Recodification Of The Texas Rules Of Civil Procedure Concerning The Jury Charge, William V. Dorsaneo Iii

Faculty Journal Articles and Book Chapters

The primary purpose of this article is to discuss and explain why the Texas Rules of Civil Procedure concerning the trial court's charge to the jury should be replaced by a new set of procedural rules initially developed by a Jury Charge Task Force appointed by the Texas Supreme Court in 1991. As seminared, amended, and recommended for adoption to the Texas Supreme Court by the Supreme Court Advisory Committee in 1996, these proposed rules, or comparable ones,should be promulgated by the Texas Supreme Court. Revision of the jury charge rules is desirable because the procedures for preserving complaints about …

The Power And The Process: Instructions And The Civil Jury, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The form of the court's charge to the jury affects power relationships among judge and jury, trial and appellate courts, and plaintiffs and defendants. It also influences the role of the jury and the content of the underlying substantive law. Under current federal law, trial judges have virtually complete discretion in making decision about jury charge format, despite the important implications of that decision. This article demonstrates, by using examples, the ways in which the form of the jury charge can make a difference. It then argues that the general charge should remain the norm. This is true first for …

Work Product Rejected: A Reply To Professor Allen, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article responds to Professor Ronald Allen's Work Product Revisited: A Comment on Rethinking Work Product.

Rethinking Work Product, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article analyzes the traditional and law & economics explanations purporting to justify the exclusion of work product materials from discovery. It argues that none of these arguments are well founded and that, instead, the privilege increases costs and decreases the system's ability to produce appropriate settlements and accurate fact finding. To the extent that the privilege serves legitimate ends, narrower and more narrowly tailored protections would provide the necessary protection.

Litigating The Zero-Sum Game: The Effect Of Institutional Reform Litigation On Absent Parties, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article considers the impact that the use and misuse of equitable interest balancing has had on institutional reform litigation. It begins by considering the types of cases in which interest balancing was originally used in equity, and then surveys the use of interest balancing in school desegregation and employment discrimination cases. The article argues that the Supreme Court's interest balancing is flawed in systemic ways that result in overvaluing non-party interests.

Antitrust: Criminal Intent In Antitrust Prosecutions, Collateral Estoppel And Section 5(A) Of The Clayton Act, And The Relationship Of Standing And Injury In Private Antitrust Suits, C. Paul Rogers Iii

Faculty Journal Articles and Book Chapters

No abstract provided.

Summary Judgements In Antitrust Conspiracy Litigation, C. Paul Rogers Iii.

Faculty Journal Articles and Book Chapters

No abstract provided.