Law Commons^™

Plaintiffs' Process: Civil Procedure, Mdl, And A Day In Court, Elizabeth Chamblee Burch, Abbe R. Gluck

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The article focuses on the concept of "plaintiffs process" within the field of civil procedure. It discusses how civil procedure doctrine has traditionally been defendant-centric, focusing on the rights and protections of defendants in legal cases. It examines the role of multidistrict litigation (MDL) in this context and how it impacts plaintiffs rights and access to the courts.

Theseus In The Labyrinth: How State Constitutions Can Slay The Procedural Minotaur, Marcus Alexander Gadson

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Civil procedure is one of the biggest hurdles to access to justice. An array of rules and interpretations of those rules have turned lawsuits into meandering mazes with a procedural minotaur waiting to gobble up meritorious claims. The problem is especially acute for the many Americans without abundant resources or access to a lawyer. Fortunately, there is a ready remedy, albeit one access to justice advocates have ignored: state constitutions. Forty state constitutions, which protect hundreds of millions of Americans, generally guarantee "[t]hat all courts shall be open, and every person, for an injury done him in his person, property …

The Elastics Of Snap Removal: An Empirical Case Study Of Textualism, Thomas O. Main, Jeffrey W. Stempel, David Mcclure

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This article reports the findings of an empirical study of textualism as applied by federal judges interpreting the statute that permits removal of diversity cases from state to federal court. The “snap removal” provision in the statute is particularly interesting because its application forces judges into one of two interpretive camps—which are fairly extreme versions of textualism and purposivism, respectively. We studied characteristics of cases and judges to find predictors of textualist outcomes. In this article we offer a narrative discussion of key variables and we detail the results of our logistic regression analysis. The most salient predictive variable was …

Justice Ginsburg, Civil Procedure Professor And Champion Of Judicial Federalism, Rodger D. Citron

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No abstract provided.

Hands-Off Religion In The Early Months Of Covid-19, Samuel J. Levine

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For decades, scholars have documented the United States Supreme Court’s “hands-off approach” to questions of religious practice and belief, pursuant to which the Court has repeatedly declared that judges are precluded from making decisions that require evaluating and determining the substance of religious doctrine. At the same time, many scholars have criticized this approach, for a variety of reasons. The early months of the COVID-19 outbreak brought these issues to the forefront, both directly, in disputes over limitations on religious gatherings due to the virus, and indirectly, as the Supreme Court decided important cases turning on religious doctrine. Taken together, …

The Nature Of Standing, Matthew I. Hall, Christian Turner

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Standing to raise a claim before a judicial tribunal is notoriously contested. Federal courts during the last century developed an increasingly rule-like and rigid doctrine around the concept of private injury to govern access to the federal forum. Some states followed the federal lead. Others have created important exceptions, and even in federal courts, issues like organizational standing, legislative standing, and standing of qui tam relators have proved controversial. We describe a broader taxonomy of agenda control rules, of which standing rules are a special case, to understand why and how courts and other institutions govern their choices of what …

Civil Statutes Of Limitation For Child Sexual Abuse And Domestic Minor Sex Trafficking, Emma Hetherington, Melina D. Lewis, Brian Atkinson, Brittany Blanchard, Kevin Tyler Dysart, Chase Lyndale, Devin Mashman, Charles Lawson Turner

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The Wilbanks Child Endangerment and Sexual Exploitation (CEASE) Clinic is a teaching and research clinic at the University of Georgia School of Law. The clinic represents survivors of childhood sexual abuse and exploitation in civil and juvenile dependency proceedings. Since opening its doors in 2016, CEASE has assisted over 100 survivors in the state of Georgia through legal representation, legal advice, and/or referrals. Law and masters of social work students work in the clinic and participate in a seminar covering best practices in representing survivors, relevant laws and policies, and practical legal and social work skills. Law students represent survivors …

Snap Removal: Concept; Cause; Cacophony; And Cure, Jeffrey W. Stempel, Thomas O. Main, David Mcclure

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So-called “snap removal” – removal of a case from state to federal court prior to service on a forum state defendant – has divided federal trial courts for 20 years. Recently, panels of the Second, Third and Fifth Circuits have sided with those supporting the tactic even though it conflicts with the general prohibition on removal when the case includes a forum state defendant, a situation historically viewed as eliminating the need to protect the outsider defendant from possible state court hostility.

Consistent with the public policy underlying diversity jurisdiction – availability of a federal forum to protect against defending …

Statute Of Limitations For Child Sexual Abuse Civil Lawsuits In Georgia, Emma Hetherington, Jean Mangan, Chase Lyndale, Michael Nunnally, Wilbanks Child Endangerment And Sexual Exploitation Clinic, University Of Georgia School Of Law

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Only 29% of child sexual abuse reports result in criminal charges being filed. As a result, most states have enacted civil statutes of limitations to allow survivors to file claims both against abusers and also those who owed them a duty of care and knew or should have known about the abuse. In 2015 the Georgia legislature passed the Hidden Predator Act (HPA) to amend the state’s civil statute of limitations. Under the HPA, survivors of child sexual abuse that occurred prior to July 1, 2015 were given a two-year retroactive window under which to file claims against their abusers. …

Brandeis’S I.P. Federalism: Thoughts On Erie At Eighty, Joseph S. Miller

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Justice Brandeis is, in intellectual property law’s precincts, most famous for his lone dissent in International News Service v. Associate Press, the misappropriation case one can find in virtually every i.p. survey casebook (and many property law casebooks as well). But in the wider legal world, Brandeis is likely most famous for his earthquake opinion in Erie Railroad Co. v. Tompkins. Do Brandeis’s opinions in these two cases speak to each other? Can considering them together inform broader reflections on the texture of our federalism in the i.p. context? This piece, prepared in connection with an “Erie at Eighty” conference …

Nudges And Norms In Multidistrict Litigation: A Response To Engstrom, Elizabeth Chamblee Burch

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On paper, the Federal Rules of Civil Procedure apply equally to billion-dollar opioid allegations and small-stakes claims for $75,000.01. In practice, however, judges and attorneys in high-stakes multidistrict proceedings like those over opioids have invented a smattering of procedures that you’ll never find indexed in the Federal Rules: plaintiff fact sheets, short form complaints, science days, bellwether trials, census orders, inactive dockets, and Lone Pine orders to name but a few. In a world where settlement is the prevailing currency, norms take root. But as norms blossom, the stabilizing features of the federal rules—balance, predictability, and structural protections—can wither. As …

Our Passive-Aggressive Model Of Civil Adjudication, Thomas O. Main

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In this essay, Professor Main offers one original observation and poses two new questions about the vanishing civil trial.

Uniformity Of State & Federal Procedure, Thomas O. Main

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No abstract provided.

Mediation: An Unlikely Villain, Thomas O. Main

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Professor Main argues that the modem ADR movement (and mediation in particular), rather than some (other) ideology, beget the pleading and summary judgment standards that exemplify contemporary practice and procedure in the fourth era in the history of American civil procedure. The other key reforms of the fourth era-the vanishing trial, the embrace of ADR, judicial case management and the pursuit of settlement by any means necessary-are more obviously tied to the modem ADR movement. Blame for all of the key fourth era reforms is thus traceable to the modern ADR movement. This, in turn, matters because it is generally …

Disciplinary Regulation Of Prosecutorial Discretion: What Would A Rule Look Like?, Samuel J. Levine

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This Essay is the third part of a larger project examining the potential role of professional discipline in the regulation and supervision of prosecutors’ charging decisions. The first two parts of the project argued that courts have both the authority and the ability to exercise effective disciplinary review of charging decisions through the adoption of ethics rules and their enforcement in the disciplinary process. This Essay takes the next step in the project, considering the nature of rules that courts might adopt, by exploring potential rules targeting two improprieties: arbitrary and capricious charging decisions, and discriminatory charging decisions.

A Politics-Reinforcing Political Question Doctrine, Harlan G. Cohen

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The modern political question doctrine has long been criticized for shielding the political branches from proper judicial scrutiny and allowing the courts to abdicate their responsibilities. Critics of the doctrine thus cheered when the Supreme Court, in Zivotofsky I, announced a narrowing of the doctrine. Their joy though may have been short-lived. Almost immediately, Zivotofsky II demonstrated the dark side of judicial review of the separation of powers between Congress and the President: deciding separations of powers cases may permanently cut one of the political branches out of certain debates. Judicial scrutiny in a particular case could eliminate political scrutiny …

Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards

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On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.

The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …

Asymmetry And Adequacy In Discovery Incentives: The Discouraging Implications In Haeger V. Goodyear, Jeffrey W. Stempel

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In this article, Professor Jeffrey Stempel explores the implications the decision in Haeger v. Goodyear Tire & Rubber Co. has for discovery and civil procedure. Professor Stempel argues the troublesome narrative that discovery problems and "abuse" are largely problems of claimants seeking excessive discovery that is unduly burdensome and costly relative to the case at hand is a significant part of the problem. Since the mid-1970s, the prevailing narrative has blamed discovery seekers more than discovery resisters.In that narrative, discovery problems are largely the problems of plaintiffs that are too unrealistic, sloppy, lazy, or greedy in frequently seeking excessive discovery. …

Who Has Standing To Sue The President Over Allegedly Unconstitutional Emoluments?, Matthew I. Hall

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Three pending lawsuits challenge President Trump's practice of accepting payments and other benefits from foreign governments through his businesses as violative of the Foreign Emoluments Clause. They also allege that the President's practice of accepting payments and benefits from state or federal governmental units violates the Domestic Emoluments Clause. These actions raise interesting questions about the meaning of two little-discussed provisions of the Constitution. But before reaching the merits the courts will first have to grapple with issues of justiciability - in particular, with the question whether plaintiffs have "standing" to bring their claims in federal court. This article explains …

Repeat Players In Multidistrict Litigation: The Social Network, Elizabeth Chamblee Burch, Margaret S. Williams

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As class certification wanes, plaintiffs’ lawyers resolve hundreds of thousands of individual lawsuits through aggregate settlements in multidistrict litigation. But without class actions, formal rules are scarce and judges rarely scrutinize the private agreements that result. Meanwhile, the same principal-agent concerns that plagued class-action attorneys linger. These circumstances are ripe for exploitation: few rules, little oversight, multi-million dollar common-benefit fees, and a push for settlement can tempt a cadre of repeat players to fill in the gaps in ways that further their own self-interest.

Although multidistrict litigation now comprises 36 percent of the entire federal civil caseload, legal scholars have …

Monopolies In Multidistrict Litigation, Elizabeth Chamblee Burch

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When transferee judges receive a multidistrict proceeding, they select a few lead plaintiffs’ lawyers to efficiently manage litigation and settlement negotiations. That decision gives those attorneys total control over all consolidated plaintiffs’ claims and rewards them richly in common-benefit fees. It’s no surprise then that these are coveted positions, yet empirical evidence confirms that the same attorneys occupy them time and again.

Anytime repeat players exist and exercise both oligopolistic leadership control across multidistrict proceedings and monopolistic power within a single proceeding, there is concern that they will use their dominance to enshrine practices and norms that benefit themselves at …

When Torts Met Civil Procedure: A Curricular Coupling, Laura G. Dooley, Brigham A. Fordham, Ann E. Woodley

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Law students must become adept at understanding how various bodies of law interact-supporting, balancing, and even conflicting with each other. This article describes an attempt to achieve these goals by merging two canonical first-year courses, civil procedure and torts, into an integrated class titled ‘Introduction to Civil Litigation’. Our most pressing motivation was concern that students who study civil procedure and torts in isolation develop a skewed, unrealistic view of how law works in the real world. By combining these courses, we hoped to teach students early in their careers to approach problems more like practicing lawyers, who must deal …

Notes From A Quiet Corner: User Concerns About Reinsurance Arbitration – And Attendant Lessons For Selection Of Dispute Resolution Forums And Methods, Jeffrey W. Stempel

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Arbitration between insurers and reinsurers – those who insure insurance companies – should logically run as smoothly as any arbitration process. Like the traditional commercial arbitration that drove enactment of the Federal Arbitration Act, reinsurance arbitration involves experienced actors in a confined industry in which the parties should be constructively aware of the rules, norms, customs and practices of the industry. But in spite of this, reinsurance arbitration experiences consistent problems of which the participants complain. This article reviews the complaints and exams possible solutions – including the possibility of arbitrating less and litigating more. Although these possible solutions would …

The Preliminary Injunction Standard In Diversity: A Typical Unguided Erie Choice, David E. Shipley

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The standard for granting preliminary injunctions in some states is not the same as the preliminary injunction standard that is followed in the federal district courts in the federal circuit where the state is located. For example, the interlocutory injunction standard in Georgia’s superior courts is not as demanding as the preliminary injunction standard in Georgia’s federal courts. Although state and federal courts in Georgia consider four similar factors in deciding whether to grant or deny provisional injunctive relief, a balancing or sliding scale approach can be used in Georgia’s courts; the moving party need not prove all four of …

Making Sense Of Legislative Standing, Matthew I. Hall

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Legislative standing doctrine is neglected and under-theorized. There has always been a wide range of opinions on the Supreme Court about the proper contours of legislative standing doctrine and even about whether the Court should adjudicate disputes between the other two branches at all. Perhaps owing to these disagreements, the full Court has never articulated a clear vision of the doctrine. While the Court has managed to resolve some cases, it has not achieved the consensus necessary to provide a comprehensive and coherent account of critical doctrinal issues such as what type of injury can give rise to legislative standing …

Crossing The Line: Daubert, Dual Roles, And The Admissibility Of Forensic Mental Health Testimony, Sara Gordon

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Psychiatrists and other mental health professionals often testify as forensic experts in civil commitment and criminal competency proceedings. When an individual clinician assumes both a treatment and a forensic role in the context of a single case, however, that clinician forms a dual relationship with the patient—a practice that creates a conflict of interest and violates professional ethical guidelines. The court, the parties, and the patient are all affected by this conflict and the biased testimony that may result from dual relationships. When providing forensic testimony, the mental health professional’s primary duty is to the court, not to the patient, …

Recentering Tribal Criminal Jurisdiction, Addie C. Rolnick

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The boundaries of modern tribal criminal jurisdiction are defined by a handful of clear rules—such as a limit on sentence length and a categorical prohibition against prosecuting most non-Indians—and many grey areas in which neither Congress nor the Supreme Court has specifically addressed a particular question. This Article discusses five of the grey areas: whether tribes retain concurrent jurisdiction to prosecute major crimes, whether tribes affected by Public Law 280 retain concurrent jurisdiction to prosecute a full range of crimes, whether tribes may prosecute Indians who are not citizens of any tribe, whether tribes may prosecute their own citizens for …

Braking The Rules: Why State Courts Should Not Replicate Amendments To The Federal Rules Of Civil Procedure, Stephen N. Subrin, Thomas O. Main

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We have criticized the amendments to the Federal Rules of Civil Procedure since the 1980s and the procedural changes made by United States Supreme Court decisions during the same period. These amendments and changes, even if subtle and incremental, launched a new era—the Fourth Era in the grand history of American civil procedure. In this era, tragically, litigation is often perceived as a nuisance, trials are a mistake, and judicial case management is a catholicon. In this Article, we turn our attention to state court procedure. States could follow their federal counterparts; indeed, the pursuit of uniformity can be instinctive. …

Calibrating Participation: Reflections On Procedure Versus Procedural Justice, Elizabeth Chamblee Burch

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When the same defendant harms many people in similar ways, a plaintiff’s ability to meaningfully participate in litigating her rights is curtailed dramatically. Now it is the rare plaintiff who sues a nationwide (or worldwide) corporation in her home jurisdiction and is able to litigate and resolve her claims there. Although several factors play a role in this phenomenon, including tort reform efforts like the Class Action Fairness Act, one of the most significant factors is Supreme Court jurisprudence over the last ten years in the areas of arbitration, personal jurisdiction, pleading, and class actions. Of course, recent cases aren’t …

Financing Issue Classes: Benefits And Barriers To Third-Party Funding, Elizabeth Chamblee Burch

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This essay, written for NYU's symposium on Litigation Funding: The Basics and Beyond, explores the costs and benefits of using third-party financing to fund issue class actions.