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Full-Text Articles in Civil Procedure

Plaintiff Personal Jurisdiction And Venue Transfer, Scott Dodson Dec 2018

Plaintiff Personal Jurisdiction And Venue Transfer, Scott Dodson

Scott Dodson

Personal jurisdiction usually focuses on the rights of the defendant. That is because a plaintiff implicitly consents to personal jurisdiction in the court where the plaintiff chooses to file. But what if the defendant seeks to transfer venue to a court in a state in which the plaintiff has no contacts and never consented to personal jurisdiction? Lower courts operate on the assumption that, in both ordinary venue-transfer cases under 28 U.S.C. § 1404(a) and multidistrict-litigation cases under § 1407(a), personal-jurisdiction concerns for plaintiffs simply do not apply. I contest that assumption. Neither statute expands the statutory authorization ...


Law School News: Appeals Court Hears Labor Arguments At Roger Williams University School Of Law 10-2-2018, Katie Mulvaney, Roger Williams University School Of Law Oct 2018

Law School News: Appeals Court Hears Labor Arguments At Roger Williams University School Of Law 10-2-2018, Katie Mulvaney, Roger Williams University School Of Law

Life of the Law School (1993- )

No abstract provided.


Civil Litigation Reform In The Trump Era: Threats And Opportunities Searching For Salvageable Ideas In Ficala, Howard M. Erichson Oct 2018

Civil Litigation Reform In The Trump Era: Threats And Opportunities Searching For Salvageable Ideas In Ficala, Howard M. Erichson

Fordham Law Review

The Fairness in Class Action Litigation Act of 2017 (FICALA) was introduced in Congress less than three weeks after Donald Trump took office as President. Supported by the U.S. Chamber of Commerce and opposed by consumer advocates and civil rights groups, the bill passed the House of Representatives one month after its introduction on a party-line vote of 220 to 201, with 220 Republicans and zero Democrats voting in favor. FICALA stalled in the Senate and, as of this writing, does not appear to be moving toward passage in its current form. But reform ideas have a way of ...


What We Don't Know About Class Actions But Hope To Know Soon, Jonah B. Gelbach, Deborah R. Hensler Oct 2018

What We Don't Know About Class Actions But Hope To Know Soon, Jonah B. Gelbach, Deborah R. Hensler

Fordham Law Review

Legislation that would alter class action practice in the federal courts has been pending in Congress. Nearly a decade’s worth of U.S. Supreme Court cases have restricted the scope and ease of use of the class action device. Class action critics argue that class litigation is a “racket” that fails to compensate plaintiffs and instead enriches plaintiffs’ lawyers at the expense of legitimate business practices. On the other hand, defenders of class actions decry the legislative and judicial forces aligned against them, warning that trends in class action law will eviscerate the practical rights held by consumers and ...


Jurisdiction In The Trump Era, Scott Dodson Oct 2018

Jurisdiction In The Trump Era, Scott Dodson

Fordham Law Review

The election of Donald Trump as President of the United States induced immediate speculation about how his tenure would affect various areas of the law. In civil-procedure circles, the intuition is that his status as a probusiness, antiregulation Republican seems likely to push procedural doctrine generally in pro-defendant directions. That intuition seems sound in the specific procedural subtopic of jurisdictional doctrine relating to forum selection. In this Essay, I document recent pre-Trump, pro-defendant trends in personal jurisdiction and diversity jurisdiction, and I detail how those trends impose significant burdens on plaintiffs. I then explain why the remainder of Trump’s ...


The Looming Battle For Control Of Multidistrict Litigation In Historical Perspective, Andrew D. Bradt Oct 2018

The Looming Battle For Control Of Multidistrict Litigation In Historical Perspective, Andrew D. Bradt

Fordham Law Review

2018 marks fifty years since the passage of the Multidistrict Litigation Act. But instead of thoughts of a golden-anniversary celebration, an old Rodney Dangerfield one-liner comes to mind: “[M]y last birthday cake looked like a prairie fire.” Indeed, after a long period of relative obscurity, multidistrict litigation (MDL) has become a subject of major controversy—and not only among scholars of procedure. For a long time, both within and beyond the rarified world of procedure scholars, MDL was perceived as the more technical, less extreme cousin of the class action, which attracted most of the controversy. My goal in ...


#Sowhitemale: Federal Civil Rulemaking, Brooke D. Coleman Oct 2018

#Sowhitemale: Federal Civil Rulemaking, Brooke D. Coleman

NULR Online

116 out of 136. That is the number of white men who have served on the eighty-two-year-old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate, even in the context of the white-male-dominated legal profession. If the rules were simply a technical set of instructions made by a neutral set of experts, then perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rule-makers ...


Asbestos Trust Transparency, Mark A. Behrens Oct 2018

Asbestos Trust Transparency, Mark A. Behrens

Fordham Law Review

Originally and for many years, the primary defendants in asbestos cases were companies that mined asbestos or manufactured amphibole-containing thermal insulation. Hundreds of thousands of claims were filed against the major asbestos producers, such as Johns-Manville Corp., Owens Corning Corp., and W.R. Grace & Co. By the late 1990s, asbestos litigation had reached such proportions that the U.S. Supreme Court noted the “elephantine mass” of cases and referred to the litigation as a “crisis.” Mass filings pressured “most of the lead defendants and scores of other companies” into bankruptcy, including virtually all manufacturers of asbestos-containing thermal insulation. Following a ...


#Sowhitemale: Federal Civil Rulemaking, Brooke D. Coleman Oct 2018

#Sowhitemale: Federal Civil Rulemaking, Brooke D. Coleman

Northwestern University Law Review

116 out of 136. That is the number of white men who have served on the eighty-two-year-old committee responsible for creating and maintaining the Federal Rules of Civil Procedure. The tiny number of non-white, non-male committee members is disproportionate, even in the context of the white-male-dominated legal profession. If the rules were simply a technical set of instructions made by a neutral set of experts, then perhaps these numbers might not be as disturbing. But that is not the case. The Civil Rules embody normative judgments about the values that have primacy in our civil justice system, and the rule-makers ...


Forum Selling Abroad, Stefan Bechtold, Jens Frankenreiter, Daniel M. Klerman Sep 2018

Forum Selling Abroad, Stefan Bechtold, Jens Frankenreiter, Daniel M. Klerman

University of Southern California Legal Studies Working Paper Series

Judges decide cases. Do they also try to influence which cases they decide? Clearly plaintiffs “shop” for the most attractive forum, but do judges try to attract cases by “selling” their courts? Some American judges actively try to enlarge their influence by making their courts attractive to plaintiffs, a phenomenon known as “forum sell-ing.” This article shows that forum selling occurs outside the U.S. as well, focusing on Germany, a country that is often held up as the paragon of the civil law approach to adjudication. As in the U.S., German courts attract cases primarily through the pro-plaintiff ...


Valley Health Sys. V. Estate Of Jane Doe, 134 Nev. Adv. Op. 76 (Sept. 27, 2018) (En Banc), Amanda Stafford Sep 2018

Valley Health Sys. V. Estate Of Jane Doe, 134 Nev. Adv. Op. 76 (Sept. 27, 2018) (En Banc), Amanda Stafford

Nevada Supreme Court Summaries

The Court held that the district court acted within its discretion in sanctioning the party for discovery violations. Further, it determined that the district court’s citation to the Nevada Rules of Professional Conduct causes reputational harm that amounts to a sanction and that the district court correctly found that the attorneys did in fact violate Nevada Rule of Professional Conduct 3.3(a)(1).


Personal Jurisdiction And Aggregation, Scott Dodson Sep 2018

Personal Jurisdiction And Aggregation, Scott Dodson

Northwestern University Law Review

Aggregation—the ability to join parties or claims in a federal civil lawsuit—has usually been governed by subject matter jurisdiction, claim and issue preclusion, and the joinder rules. These doctrines have tended to favor aggregation for its efficiency, consistency, and predictability. Yet aggregation is suddenly under attack from a new threat, one that has little to do with aggregation directly: personal jurisdiction. In this Article, I chronicle how a recent restrictive turn in personal jurisdiction—seen in modern cases narrowing general jurisdiction and October Term 2016’s blockbuster case Bristol-Myers Squibb—threatens the salutary benefits of aggregation across a ...


Judicial Mistakes In Discovery, Diego A. Zambrano Sep 2018

Judicial Mistakes In Discovery, Diego A. Zambrano

Northwestern University Law Review

A recent wave of scholarship argues that judges often fail to comply with binding rules or precedent and sometimes apply overturned laws. Scholars have hypothesized that the cause of this “judicial noncompliance” may be flawed litigant briefing that introduces mistakes into judicial decisions—an idea this Essay calls the “Litigant Hypothesis.” The Essay presents a preliminary study aimed at exploring ways of testing the validity of the Litigant Hypothesis. Employing an empirical analysis that exploits recent amendments to Federal Discovery Rule 26, this Essay finds that the strongest predictor of noncompliance in a dataset of discovery decisions is indeed faulty ...


Interlocutory Appeals In New York-Time Has Come For A More Efficient Approach, David Scheffel Aug 2018

Interlocutory Appeals In New York-Time Has Come For A More Efficient Approach, David Scheffel

Pace Law Review

Currently, the appellate division must decide an enormous number of appeals every year.7 In light of this caseload crisis, New York must reevaluate its generous approach to interlocutory appeals.8 This Comment discusses how the appellate division can deal most efficiently with interlocutory appeals. Part II describes the history of interlocutory appeals in New York, since the creation of the appellate division. Part III explains how other jurisdictions treat interlocutory appeals. Part IV presents the current caseload crisis in the appellate division. Part V describes the controversy over unlimited interlocutory appealability. Part VI evaluates how New York can streamline ...


The Limited Standing Rule Of Chapter 380: Substantial Interests Lost In The Process, Jaimie A. Ross Aug 2018

The Limited Standing Rule Of Chapter 380: Substantial Interests Lost In The Process, Jaimie A. Ross

Florida State University Journal of Land Use and Environmental Law

No abstract provided.


N. Nev. Homes V. Gl Constr., 134 Nev. Adv. Op. 60 (Aug. 2, 2018), Jeff Chronister Aug 2018

N. Nev. Homes V. Gl Constr., 134 Nev. Adv. Op. 60 (Aug. 2, 2018), Jeff Chronister

Nevada Supreme Court Summaries

The Court found that the district court’s awarding of attorneys fees and costs was appropriate following bifurcated trials in which the parties settled as to damages on Northern Nevada Homes’ claims in an amount that exceeds GL Construction’s damages on its counterclaim because: 1) no statute or court rule requires the trial court to offset a damages judgment on one party’s counterclaim by the amount recovered by another party in settling its claim to determine which side is the prevailing party, and 2) the most reasonable interpretation of NRS 18.010(2)(a) and 18.020(3 ...


A Characterization Of The Medical-Legal Partnership (Mlp) Of Nebraska Medicine, Jordan Pieper Aug 2018

A Characterization Of The Medical-Legal Partnership (Mlp) Of Nebraska Medicine, Jordan Pieper

Service Learning/Capstone Experience

This research study was completed at Legal Aid of Nebraska’s Health, Education, and Law Project through the partnership it has formed working with Nebraska Medicine and Iowa Legal Aid. Traditionally, health and disease have always been viewed exclusively as "healthcare" issues. But with healthcare consistently growing towards holistic approaches to help patients, we now know there are deeper, structural conditions of society that can act as strong driving forces of a person's poor daily living conditions that can negatively impact health. The importance of a Medical-Legal Partnership is that it considers a patient's social determinants of health ...


20th Annual Open Government Summit: Access To Public Records Act And Open Meetings Act, 2018, Department Of Attorney General, State Of Rhode Island Jul 2018

20th Annual Open Government Summit: Access To Public Records Act And Open Meetings Act, 2018, Department Of Attorney General, State Of Rhode Island

School of Law Conferences, Lectures & Events

10


Labarbera V. Wynn Las Vegas, Llc, 134 Nev. Adv. Op. 51 (Jul. 19, 2018), Casey Lee Jul 2018

Labarbera V. Wynn Las Vegas, Llc, 134 Nev. Adv. Op. 51 (Jul. 19, 2018), Casey Lee

Nevada Supreme Court Summaries

The Court determined that the district court erred when it precluded the appellant from testifying by video conference from Italy and when it cited the incorrect legal standard to exclude evidence of appellant’s intoxication.


A Better Balance For Federal Rules Governing Public Access To Appeal Records In Immigration Cases, Nancy Morawetz Jul 2018

A Better Balance For Federal Rules Governing Public Access To Appeal Records In Immigration Cases, Nancy Morawetz

New York University Public Law and Legal Theory Working Papers

In the first year of the Trump Administration, the courts played a critical role in reviewing and shaping federal immigration policy. When nonprofits and states filed prominent cases challenging the “travel ban,” the public could follow the court process in real time, as new filings were published on the web. But this access to filings is highly unusual for immigration cases. Due to Federal Rules promulgated in 2009, there are special restrictions on access to immigration filings that mean that filings in cases that are less prominent are impossible to access electronically. Thus, as immigration enforcement continues to ratchet up ...


"Dirty" Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts, David S. Caudill Jul 2018

"Dirty" Experts: Ethical Challenges Concerning, And A Comparative Perspective On, The Use Of Consulting Experts, David S. Caudill

St. Mary's Journal on Legal Malpractice & Ethics

U.S. attorneys often hire consulting experts who potentially never get named as testifying experts. The same practice is evident in Australia, where the colloquial distinction is between a “clean” and a “dirty” expert, the latter being in the role of a consultant who is considered a member of the client’s “legal team.” A “clean” expert named as a witness is then called “independent,” signaling that he or she is not an advocate. In contrast to the U.S. discourse concerning consulting and testifying experts, focused on discovery issues, the conversation in Australia betrays immediate ethical concerns that both ...


Access To Justice: Impact Of Twombly & Iqbal On State Court Systems, Danielle Lusardo Schantz Jun 2018

Access To Justice: Impact Of Twombly & Iqbal On State Court Systems, Danielle Lusardo Schantz

Akron Law Review

Approximately a decade ago, the Supreme Court of the United States unexpectedly changed the pleading standard for federal cases with the Twombly and Iqbal decisions. Plausibility pleading replaced the more liberal notice pleading standard endorsed by the Federal Rules of Civil Procedure. Since then, state courts have been faced with a choice to either mirror this change in pleading standards or maintain their commitment to notice pleading. Plausibility pleading has begun to creep into the state court system. Several states have formally changed their pleading standards, while others have declared their commitment to notice pleading. This Article considers the impact ...


Long Gone! When To Recall Discharged Juries, Maria T. Ciccolini Jun 2018

Long Gone! When To Recall Discharged Juries, Maria T. Ciccolini

Akron Law Review

In June 2016 the Supreme Court ruled in Dietz v. Bouldin that federal judges in civil cases could, in order to amend a flawed verdict, reuse a jury that was discharged and long gone. Under this ruling, by the time the court or the attorneys recognize the inconsistent ruling, the jury could and likely will have been profoundly prejudiced, therefore violating the claimant’s right to a fair trial afforded to him by our democratic system of justice. The prejudice test implemented by the Court in Dietz is not detailed enough to tighten the reins on judicial discretion and ensure ...


The Sedona Principles (Third Edition): Continuity, Innovation, And Course Corrections, Thomas Y. Allman Jun 2018

The Sedona Principles (Third Edition): Continuity, Innovation, And Course Corrections, Thomas Y. Allman

Akron Law Review

The Sedona Principles and Commentaries in the Third Edition (2018) are worthy successors to those of the Second Edition (2007) and, in many respects, a substantial improvement. Principles 2, 5 and 8 build on the 2015 amendments to Federal Civil Rules, including amended Rule 26(b)(1), in advocating an increased emphasis on proportionality across the full spectrum of e-discovery activity. They also reflect a more nuanced view of Rule 26(b)(2)(B), added by the 2006 Amendments to deal with undue burden or costs, as does Principle 13 in regard to cost allocation, which recommends use of amended ...


U.S. Discovery In A Transnational And Digital Age And The Increasing Need For Comparative Analysis, Vivian Grosswald Curran Jun 2018

U.S. Discovery In A Transnational And Digital Age And The Increasing Need For Comparative Analysis, Vivian Grosswald Curran

Akron Law Review

U.S. discovery has long been a troublesome issue between the U.S. and civil-law nations. The passage of the Hague Convention on Evidence might have brought much-needed relief, but U.S. courts minimized its effects, favoring continued use of the Federal Rules of Civil Procedure. Civil-law states passed blocking statutes or their equivalents as they sought to protect what they considered to be fundamental values of privacy and national sovereignty. With the rise of transnational litigation, Section 1782 discovery was intended to provide assistance to foreign courts and parties in litigation abroad by opening certain discovery channels in the ...


Still A Failure: Broad Pretrial Discovery And The Superficial 2015 Amendments, George Shepherd Jun 2018

Still A Failure: Broad Pretrial Discovery And The Superficial 2015 Amendments, George Shepherd

Akron Law Review

Ever since broad discovery was permitted in 1938 in the Federal Rules of Civil Procedure, the system has been a failure. It has dramatically increased litigation’s cost and pain, with few balancing benefits. Broad discovery should be eliminated, returning the United States to the sensible approach of the rest of the world. In Twombly and Iqbal, the Supreme Court went part of the way towards doing exactly that; the decisions eliminate discovery in many cases. The 2015 amendments to the Federal Rules do little to cure the remaining major problems. Instead, broad discovery should be eliminated for all cases.


Initial Disclosures: The Past, Present, And Future Of Discovery, Brittany K.T. Kauffman Jun 2018

Initial Disclosures: The Past, Present, And Future Of Discovery, Brittany K.T. Kauffman

Akron Law Review

This Article looks back at the origins of initial disclosures and the history of the course of several rule amendments. There was an attempt in the early 1990s to strengthen the federal disclosure rules, but the amendments were implemented inconsistently around the country, and the amendments were subsequently rolled back in 2000. Despite these early challenges, there has been a growing movement in support of initial disclosures as a way to address the growing cost and delay of civil litigation—and, in particular, the cost and delay of discovery. Pilot projects and efforts at the state and federal levels suggest ...


Discovery Innovation: Discovery Reform And Federal Civil Rulemaking, Brooke D. Coleman Jun 2018

Discovery Innovation: Discovery Reform And Federal Civil Rulemaking, Brooke D. Coleman

Akron Law Review

Federal civil rulemaking—the process by which the Federal Rules of Civil Procedure are created and maintained—has simultaneously been described as a crisis and a crowning achievement. This Article departs from this binary and pragmatically turns to a consideration of how the committee operates. Using the lens of discovery reform, this Article examines how the rulemaking process has evolved over the past 35 years. The ups and downs of discovery reform have inspired the committee to adopt many modern rulemaking innovations. Those innovations, this Article argues, are critical to the success of the rulemaking process because they provide rulemakers ...


Self-Destruct Apps: Spoliation By Design?, Agnieszka Mcpeak Jun 2018

Self-Destruct Apps: Spoliation By Design?, Agnieszka Mcpeak

Akron Law Review

The Federal Rules of Civil Procedure are at risk of being out of sync with current technology trends. In particular, ephemeralmessaging applications, or “self-destruct apps,” are changing the way we conceptualize digital records. These apps embrace the industry goal of “privacy by design,” a positive trend in minimizing the amount of data that is created and stored. Civil discovery, on the other hand, contemplates data retention and preservation, particularly as to electronically stored information. This Article identifies the conflict between privacy by design—particularly self-destruct apps—and the civil discovery rules. It cautions against treating self-destruct apps as spoliation by ...


Practical Ways To Achieve Proportionality During Discovery And Reduce Costs In The Pretrial Phase Of Federal Civil Cases, Judge Paul W. Grimm Jun 2018

Practical Ways To Achieve Proportionality During Discovery And Reduce Costs In The Pretrial Phase Of Federal Civil Cases, Judge Paul W. Grimm

Akron Law Review

The 2015 amendments to the Federal Rules of Civil Procedure ambitiously sought to reduce pretrial delay, expense, and burden in civil cases. But the rules are not self-executing, and without active hands on judicial supervision and intervention where necessary to insure that the Rules are being applied as intended, there is a risk that the objectives of the amended rules will not be realized. This article discusses a number of common sense, practical, yet effective ways in which judges can fulfill their obligation to effectively manage their cases to achieve the goal of Rule 1 of the Rules of Civil ...