Law Commons^™

The Doctrine Of Judicial Estoppel, Steve R. Johnson

Scholarly Publications

The doctrine of judicial estoppel is not on some lawyers’ radar screens. That’s regrettable. Not anticipating application of the rule, a person may make a claim that can hurt him or her in the long run. Or, unaware of the rule, a party may fail to assert a potentially successful defense. Or, having only a very general awareness of the rule, an attorney may miss subtleties or forum variations that are the difference between winning and losing.

This article has three parts. Part I describes the doctrine of judicial estoppel, emphasizing its purposes. Part II explores the recent judicial estoppel …

Breaking The Silence: Advancing Knowledge About Adoption For Counseling Psychologists, Amanda Baden, Kathy P. Zamostny, Mary O'Leary Wiley, Karen M. O'Brien, Richard M. Lee

Department of Counseling Scholarship and Creative Works

Provides an introduction to the Major Contribution for this issue of Counseling Psychologist. The Major Contribution consists of an overview article describing the practice of adoption and two detailed reviews of recent empirical literature related to adoptive families and transracial adoptees. Given the prevalence of people affected by adoption, the lack of knowledge regarding adoption among researchers and practitioners, the inattention to adoption research by psychology, and the negative myths about and stigma faced by adoptive triad members, the Major Contribution will have the following as its purposes: (a) to increase awareness of the psychological and sociocultural issues involved in …

Daubert & Danger: The "Fit" Of Expert Predictions In Civil Commitments, Alex Scherr

Scholarly Works

The opinions of experts in prediction in civil commitment hearings should help the courts, but over thirty years of commentary, judicial opinion, and scientific review argue that predictions of danger lack scientific rigor. The United States Supreme Court has commented regularly on the uncertainty of predictive science. The American Psychiatric Association has argued to the Court that "[t]he professional literature uniformly establishes that such predictions are fundamentally of very low reliability." Scientific studies indicate that some predictions do little better than chance or lay speculation, and even the best predictions leave substantial room for error about individual cases. The sharpest …

In Defense Of Chief Justice Roy S. Moore, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Summary Of Maki V. Chong, 119 Nev. Adv. Op. No. 46, Hilary Barrett

Nevada Supreme Court Summaries

Appeal from a district court order applying the statutory homestead exemption to a debtor’s real property.

Empirical Research And Civil Jury Reform, Valerie P. Hans, Stephanie Albertson

Cornell Law Faculty Publications

In January 2003, President George W. Bush invoked the supposed failings of the civil jury as the rationale for sweeping changes to the civil justice system. In a speech given at the University of Scranton, in Pennsylvania, a state where skyrocketing costs of medical malpractice insurance had created a political crisis, President Bush said, "Excessive jury awards will continue to drive up insurance costs, will put good doctors out of Scranton, Pa." Among the changes he proposed were a decrease in the time that patients would have to sue their doctors, a national cap on pain and suffering awards at …

5th Annual Open Government Summit: Access To Public Records Act & Open Meetings Act, 2003, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

No abstract provided.

Memorandum Of Argument, Supreme Court Of Canada, In Re James R. Demers, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Lay Participation In Legal Decision Making: Introduction To Law & Policy Special Issue, Valerie P. Hans

Cornell Law Faculty Publications

United States scholarship on lay participation revolves around one predominant form of lay participation, the jury (Hans & Vidmar forthcoming 2004). However, in the legal systems of many countries, laypeople participate as decision makers in other ways. Laypersons serve as judges (Provine 1986), magistrates (Diamond 1993), and private prosecutors (Perez Gil 2003). Lay and law-trained judges may also decide cases together in mixed tribunals (Kutnjak Ivkovi6 2003; Machura 2003; Vidmar 2002). Although diverse in structure, these methods share with the jury a set of animating ideas about lay involvement in legal decision making.

Many of these ideas appear to be …

The Government As Litigant: Further Tests Of The Case Selection Model, Theodore Eisenberg, Henry Farber

Cornell Law Faculty Publications

We develop a model of the plaintiff's decision to file a lawsuit that has implications for how differences between the federal government and private litigants translate into differences in trial rates and plaintiff win rates at trial. Our case selection model generates a set of predictions for relative trial rates and plaintiff win rates, depending on the type of case and whether the government is defendant or plaintiff. To test the model, we use data on about 474,000 cases filed in federal district court between 1979 and 1994 in the areas of personal injury and job discrimination, in which the …

Racial Discrimination In Jury Selection: Professional Misconduct, Not Legitimate Advocacy, Lonnie T. Brown, Jr.

Scholarly Works

This Article examines the paradox between the adversary and disciplinary systems' outward condemnation of discrimination in jury selection and their apparent simultaneous inward acceptance of such conduct as legitimate advocacy.

Regulation Of Lawyers Without The Code, The Rules, Or The Restatement: Or, What Do Honor And Shame Have To Do With Civil Discovery Practice?, W. Bradley Wendel

Cornell Law Faculty Publications

One of the most striking things to notice when "looking back" on the regulation of the legal profession is the relative absence of enforceable legal sanctions for unethical behavior by lawyers. Before the promulgation in 1970 of the ABA's Model Code of Professional Responsibility, regulation of the legal profession was largely a matter of a fraternal body taking care of its own, and occasionally expelling miscreants. Now, of course, there is a complex body of law, enforced by courts and regulatory authorities with overlapping jurisdiction, that governs a substantial amount of the day-to-day activities of lawyers.

The hypothesis I explore …

The Evolution Of Mjp, Irma S. Russell

Faculty Works

This article examines the ABA revision to Model Rules 5.5 and 8.5 in light of today's legal world where representing clients in states outside the lawyer's state of licensure is commonplace, particularly in areas of practice that involve federal law, such as environmental law, and clients with far-flung property or business transactions in numerous jurisdictions. The article notes that although the revision to these rules represents the first step in a necessary liberalization of ethical rules and statutes to permit competent lawyers to service client needs efficiently and encourages more uniformity of approach, the rules and UPL statutes still create …

Thinking Like A Lawyer, Jeffrey C. Tuomala

Faculty Publications and Presentations

No abstract provided.

Fundamental Principles For Class Action Governance, Alexandra Lahav

Faculty Articles and Papers

Class actions face a crisis of governance. The form of governance provided by Rule 23, governance by representative parties, is both vague in theory and ignored in practice. Instead, by a combination of procedural rules, judicial interpretation and common practice, the class is governed by a regime of attorney dictatorship with limited judicial oversight. This regime neither reflects the basic insight that the class and attorney do not have a traditional attorney-client relationship nor performs the task of transforming the inchoate collectivity of the class into an organization that protects and is responsive to the will of class members. This …

Due Process Erosion: The Diminution Of Live Testimony At The Icty, Megan A. Fairlie

Faculty Publications

Shortly after its creation in 1993, the International Criminal Tribunal for the former Yugoslavia (ICTY) adopted an adversarial construct and advocated a preference for the presentation of direct evidence, or live witness testimony, in its criminal trials. In the wake of that decision and under considerable pressure to expedite its proceedings, the ICTY judges responded with efforts to streamline the trial process, amending the Tribunal’s Rules of Procedure and Evidence so as to incrementally increase the admissibility of written evidence. This article tracks the relevant rule changes and questions the merit of the decision to move away from live testimony. …

What Attorneys Think Of Jury Trial Innovations, William W. Schwarzer, J. Donald Cowan Jr., Thomas M. Chrisham

Faculty Scholarship

No abstract provided.

Solving The Nonresident Alien Due Process Paradox In Personal Jurisdiction, Robin J. Effron

Faculty Scholarship

No abstract provided.

The Station Nightclub Fire And Federal Jurisdictional Reach: The Multidistrict, Multiparty, Multiforum Jurisdiction Act Of 2002, Peter Adomeit

Faculty Scholarship

The Multidistrict, Multiparty, Multiforum Jurisdiction Act of 2002 has great potential for expediting The Station fire cases. The object of the Act is to place all of the cases from a mass disaster before a single judge, who can supervise discovery, then try the issue of liability, and either try or remand the issue of damages. How this new procedural tool will function is uncertain. The Act consolidates the power in one court to either urge the parties to accept a global settlement, or send the unresolved cases to trial. There are many unanswered questions. It is up to judges …

Civil Rights Plaintiffs And John Doe Defendants: A Study In § 1983 Procedure, Howard M. Wasserman

Faculty Publications

No abstract provided.

Teaching Civil Procedure Through Its Top Ten Cases, Plus Or Minus Two, Kevin M. Clermont

Cornell Law Faculty Publications

The thesis is that Civil Procedure teachers should give more attention to the subject's landmark cases. Law teachers' common sense and cognitive scientists' schema theory lend support to that thesis. The pedagogic implications of that thesis call for an enriched case method, the essence of which is teaching a slightly smaller number of cases and pausing on the key ones, thoroughly examining them in a rich context. The optimal sources of that context are written case studies, assigned as intermittent supplementation.

Whiplash: Who's To Blame?, Valerie P. Hans, Juliet Dee

Cornell Law Faculty Publications

Tom is sitting in his car at an intersection, waiting for the red light to change. Without warning, the car behind him, driven by a distracted mother named Elaine, slams into the rear of Tom's car. After the accident, Tom experiences severe neck pain, which interferes with his work and family life. Who's to blame?

If Tom suffered physical injury as a result, then under current legal principles she is responsible for compensating him for his injury. However, research on jury decision making in civil cases suggests that a constellation of psychological, legal and political factors operate together to focus …

When Is A Court "Punishing" Out-Of-State Conduct Rather Than Merely "Considering" Such Conduct?, Rachel A. Van Cleave

Publications

No abstract provided.

Paddling Up The Wrong Stream: Why The Stream Of Commerce Theory Is Not Part Of The Minimum Contacts Doctrine, 55 Baylor L. Rev. 503 (2003), Diane S. Kaplan

UIC Law Open Access Faculty Scholarship

No abstract provided.

The Past And Future Of The Federal Rules In State Courts, Carl W. Tobias

Law Faculty Publications

Response to Prof. John B. Oakley's writings comparing state court procedural rules with the Federal Rules of Civil procedure.

Professor Oakley's substantial contribution to the Nevada Law Journal dispute resolution symposium neither accords much treatment to how or why the earlier uniformity between state and federal procedural regimes changed so dramatically over such a brief period nor proffers very many suggestions for the future. My response aspires primarily to scrutinize how federal-state consistency deteriorated and secondarily to consider what, if any, measures should be instituted to change the present condition of state civil procedure in the fifty jurisdictions comprising the …

Recent Developments In Federal Jurisdiction And Pleading, Wendy Collins Perdue

Law Faculty Publications

Recent developments in federal jurisdiction and pleading including subject matter jurisdiction, personal jurisdiction and notice, venue, forum non conveniens, forum selection clauses, and pleading.

How Bad Law Made A Hard Case Easy: Nevada V. Hicks And The Subject Matter Jurisdiction Of Tribal Courts, Catherine T. Struve

All Faculty Scholarship

No abstract provided.

Expert Information And Expert Evidence: A Preliminary Taxonomy, Samuel R. Gross, Jennifer L. Mnookin

Articles

Federal Rule of Evidence 702 speaks in very general terms. It governs every situation in which "scientific, technical or other specialized knowledge will assist the trier of fact," and provides that, in that situation, "a witness qualified as an expert by knowledge, skill, experience, or education, may testify thereto in the form of an opinion or otherwise . . . .' In 2000, following a trio of Supreme Court cases interpreting Rule 702, the Rule was amended to include a third requirement, in addition to the helpfulness of the testimony and the qualifications of the witness: reliability. Under Rule 702 …

Wrongful Conviction, Lawyer Incompetence And English Law - Some Recent Themes, Geoffrey Bennett

Journal Articles

Viewed from a distance the outward appearances of the English Legal System might look reassuringly stable. In fact, nothing could be further from the case. During the last ten years almost every facet of the system, even the constitutional order, has been radically overhauled, or at least significantly modified. The whole system of civil procedure has been recast, after over a hundred years of relatively little major modification, in an attempt to simplify and expedite proceedings with a new emphasis on judicial case management. Perhaps most important of all, the Human Rights Act 1998, which has been effective from October …

Traditional Equity And Contemporary Procedure, Thomas O. Main

Scholarly Works

This Article offers extensive background on the development and eventual merger of the regimes of law and equity, and suggests that the procedural infrastructure of a unified system must be sufficiently elastic to accommodate the traditional jurisdiction of equity. As the Federal Rules of Civil Procedure become increasingly more elaborate and technical, strict application of those procedural rules can generate mischievous results and hardship. This Article suggests that equity remains a source of authority for district judges to avoid the application of a procedural rule when technical compliance would produce an inequitable result. A separate system of equity provided a …