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Articles 1 - 30 of 4449

Full-Text Articles in Civil Procedure

Waiver, Work Product, And Worry: A Case For Clarifying The Waiver Doctrine In Oklahoma, Mitchell B. Bryant Jan 2018

Waiver, Work Product, And Worry: A Case For Clarifying The Waiver Doctrine In Oklahoma, Mitchell B. Bryant

Oklahoma Law Review

No abstract provided.


Active Judging And Access To Justice.Pdf, Anna E. Carpenter Dec 2017

Active Judging And Access To Justice.Pdf, Anna E. Carpenter

Anna E. Carpenter

Active judging, where judges step away from the traditional, passive role to assist those without counsel, is a central feature of recent proposals aimed at solving the pro se crisis in America’s state civil courts.  Despite growing support for active judging as an access to justice intervention, we know little, empirically, about how judges interact with pro se parties as a general matter, and even less about active judging.  In response, this Article contributes new data and a new theoretical framework: the three dimensions of active judging.  These dimensions capture a judge’s role in adjusting procedures, explaining law ...


Personal Jurisdiction And Aliens, Scott Dodson, William Dodge Dec 2017

Personal Jurisdiction And Aliens, Scott Dodson, William Dodge

Scott Dodson

The increasing prevalence of noncitizens in U.S. civil litigation raises a fundamental question for the doctrine of personal jurisdiction: how should the alienage status of a defendant affect personal jurisdiction? This fundamental question comes at a time of increasing Supreme Court focus on personal jurisdiction, in cases like Bristol-Myers Squibb v. Superior Court, Daimler AG v. Bauman, and J. McIntyre Machinery, Ltd. v. Nicastro. We aim to answer that question by offering a theory of alienage personal jurisdiction. Under this theory, alienage status broadens the geographic range for minimum contacts from a single state to the whole nation. This ...


Estate Of Adams V. Fallini, 132 Nev. Adv. Op. 81 (December 29, 2016), Krystina Viernes Dec 2017

Estate Of Adams V. Fallini, 132 Nev. Adv. Op. 81 (December 29, 2016), Krystina Viernes

Nevada Supreme Court Summaries

The Court considered whether a party may appeal a district court’s order granting an NRCP 60(b) motion to set aside a final judgment for fraud upon the court. The Court held the district court’s order interlocutory and may not be appealed until a final judgment is entered.The Court held that the district court was not barred from considering the NRCP 60(b) motion and the district court did not abuse its discretion in granting relief based on fraud upon the court.


United States V. Osage Wind, Llc, Summer Carmack Dec 2017

United States V. Osage Wind, Llc, Summer Carmack

Public Land and Resources Law Review

The Osage Nation, as owner of the beneficial interest in its mineral estate, issues federally-approved leases to persons and entities who wish to conduct mineral development on its lands. After an energy-development company, Osage Wind, leased privately-owned surface lands within Tribal reservation boundaries and began to excavate minerals for purposes of constructing a wind farm, the United States brought suit on the Tribe’s behalf. In the ensuing litigation, the Osage Nation insisted that Osage Wind should have obtained a mineral lease from the Tribe before beginning its work. In its decision, the Tenth Circuit applied one of the Indian ...


Scientific Evidence And Forensic Science Since Daubert: Maine Decides To Sit Out On The Dance, Thomas L. Bohan Dec 2017

Scientific Evidence And Forensic Science Since Daubert: Maine Decides To Sit Out On The Dance, Thomas L. Bohan

Maine Law Review

In 1993, the Supreme Court of the United States stated that with the federal adoption of statutory rules of evidence in 1975, the common law rule for determining admissibility of scientific testimony was superseded, and that thenceforth admissibility of scientific testimony was to be determined solely by Federal Rule of Evidence 702 (Rule 702). The Frye standard had been adopted in one form or another by most of the federal circuits and by many of the state courts during the 70 years preceding Daubert. Referred to as the “general acceptance” standard, the Frye standard--although adopted in a variety of forms--had ...


One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl Dec 2017

One Good Plaintiff Is Not Enough, Aaron-Andrew P. Bruhl

Faculty Publications

This Article concerns an aspect of Article III standing that has played a role in many of the highest-profile controversies of recent years, including litigation over the Affordable Care Act, immigration policy, and climate change. Although the federal courts constantly emphasize the importance of ensuring that only proper plaintiffs invoke the federal judicial power, the Supreme Court and other federal courts have developed a significant exception to the usual requirement of standing. This exception holds that a court entertaining a multiple-plaintiff case may dispense with inquiring into the standing of each plaintiff as long as the court finds that one ...


Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr. Nov 2017

Court-Connected Alternative Dispute Resolution In Maine, Howard H. Dana Jr.

Maine Law Review

With these words of prophecy the Commission to Study the Future of Maine's Courts launched its discussion of alternative dispute resolution (ADR). Although conceding that “the adversary process ... has served the people of the state well” and acknowledging that “the state must continue to provide a forum for forceful advocacy that produces a definite and binding judicial decision” the Commission asked the Maine judicial and legislative branches to embrace ADR. For the last dozen years, the Author has been the Supreme Judicial Court's (SJC's) liaison to its ADR Planning and Implementation Committee and Chair of the Court ...


Civil Procedure's Five Big Ideas, Kevin M. Clermont Nov 2017

Civil Procedure's Five Big Ideas, Kevin M. Clermont

Kevin M. Clermont

Civil procedure, more than any other of the basic law-school courses, conveys to students an understanding of the whole legal system. I propose that this purpose should become, more openly, the organizing theme of the course. The focus should remain, of course, on the mechanics of the judicial branch. What I champion is giving some conscious attention, albeit mainly in the background and at an introductory level, to the big ideas of the constitutional structure within which the law formulates civil procedure. Such attention would unify the doctrinal study, while enriching it for the students and revealing its true importance.


Our Equity: Federalism And Chancery, Jeffrey Steven Gordon Nov 2017

Our Equity: Federalism And Chancery, Jeffrey Steven Gordon

University of Miami Law Review

Federal courts sitting in diversity cannot agree on whether state or federal law governs the award of a preliminary injunction. The conditions for the exercise of a federal diversity court’s extraordinary remedial power are anybody’s guess. The immediate cause of the confusion is Justice Frankfurter’s cryptic opinion in Guaranty Trust Co. v. York, which aggressively enforced Erie and, at the same time, preserved the so-called “equitable remedial rights” doctrine. There are, however, much broader and deeper causes that explain why the equitable remedial rights doctrine is almost incomprehensible today.

This Article argues that the early history of ...


Insuring Bias: Does Evidence Of Common Insurance Demonstrate Relevant Expert Witness Bias In Medical Negligence Litigation?, 55 Duq. L. Rev. 339 (2017), Marc Ginsberg Nov 2017

Insuring Bias: Does Evidence Of Common Insurance Demonstrate Relevant Expert Witness Bias In Medical Negligence Litigation?, 55 Duq. L. Rev. 339 (2017), Marc Ginsberg

Marc D. Ginsberg

No abstract provided.


Protecting The Public Benefit: Crafting Precedent For Citizen Enforcement Of Conservation Easements, Sean P. Ociepka Nov 2017

Protecting The Public Benefit: Crafting Precedent For Citizen Enforcement Of Conservation Easements, Sean P. Ociepka

Maine Law Review

In fiscal year 2004, Wal-Mart added 139 new discount stores, supercenters, and “neighborhood markets” to its already significant chain of stores across the United States. Wal-Mart developers submit their proposals to governing town bodies all over the country with the promise that the $20 million construction of a 200,000 square foot store will create 500 new jobs for the local economy, will have a payroll of over $12 million, will increase the tax base of the area, and will provide convenient, affordable shopping for consumers. For these reasons, the big box stores are a hard offer for town planners ...


Lost Esi Under The Federal Rules Of Civil Procedure, Jeffrey A. Parness Nov 2017

Lost Esi Under The Federal Rules Of Civil Procedure, Jeffrey A. Parness

Science and Technology Law Review

Current Issue

Volume 20, Number 1 – The Privacy, Probability, and Political Pitfalls of Universal DNA Collection

Meghan J. Ryan 20 SMU Sci. & Tech. L. Rev. 3 Watson and Crick’s discovery of the structure of DNA (deoxyribonucleic acid) in 1953 launched a truth-finding mission not only in science but also in the law. Just thirty years later–after the science had evolved–DNA evidence was being introduced in criminal courts. Today, DNA evidence is heavily relied on in criminal and related cases. It is routinely introduced in murder and rape cases as evidence of guilt; DNA databases have grown as even arrestees have been required to surrender DNA samples; and this evidence has been used to exonerate hundreds of convicted individuals. DNA evidence is generally revered as the “gold standard” in criminal cases because, unlike eyewitness testimony, bite-mark evidence, hair analysis, and the like, it is considered nearly infallible. This potency of DNA evidence has led to suggestions that we, as a nation, should magnify the power of DNA by increasing the size ...


Why Civil And Criminal Procedure Are So Different: A Forgotten History, Ion Meyn Nov 2017

Why Civil And Criminal Procedure Are So Different: A Forgotten History, Ion Meyn

Fordham Law Review

Much has been written about the origins of civil procedure. Yet little is known about the origins of criminal procedure, even though it governs how millions of cases in federal and state courts are litigated each year. This Article’s examination of criminal procedure’s origin story questions the prevailing notion that civil and criminal procedure require different treatment. The Article’s starting point is the first draft of the Federal Rules of Criminal Procedure—confidential in 1941 and since forgotten. The draft reveals that reformers of criminal procedure turned to the new rules of civil procedure for guidance. The ...


Deference To The Plaintiff In Forum Non Conveniens Cases, Brett Workman Nov 2017

Deference To The Plaintiff In Forum Non Conveniens Cases, Brett Workman

Fordham Law Review

This Note analyzes several cases in an effort to understand why, based on each case’s unique circumstances, the plaintiff’s choice of forum received a particular level of deference. This Note then produces a synthesized list of factors that alter the level of deference a plaintiff’s choice of forum receives under forum non conveniens analysis. An understanding of these factors provides increased predictability as to when a plaintiff’s choice of forum might receive heightened deference under this common law doctrine.


Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro Oct 2017

Actavis And Error Costs: A Reply To Critics, Aaron S. Edlin, C. Scott Hemphill, Herbert J. Hovenkamp, Carl Shapiro

Aaron Edlin

The Supreme Court’s opinion in Federal Trade Commission v. Actavis, Inc. provided fundamental guidance about how courts should handle antitrust challenges to reverse payment patent settlements. In our previous article, Activating Actavis, we identified and operationalized the essential features of the Court’s analysis. Our analysis has been challenged by four economists, who argue that our approach might condemn procompetitive settlements.As we explain in this reply, such settlements are feasible, however, only under special circumstances. Moreover, even where feasible, the parties would not actually choose such a settlement in equilibrium. These considerations, and others discussed in the reply ...


The Case For Restricting Diversity Jurisdiction: The Undeveloped Arguments, From The Race To The Bottom To The Substitution Effect, David Crump Oct 2017

The Case For Restricting Diversity Jurisdiction: The Undeveloped Arguments, From The Race To The Bottom To The Substitution Effect, David Crump

Maine Law Review

Diversity jurisdiction is an idea whose time has come--and gone. In its present form, it serves its alleged purpose so inconsistently that its benefits are minimal, if they exist at all. And the costs that it imposes are significant. The traditional arguments for and against diversity are well known, but the traditional arguments against it actually understate its disadvantages. Therefore, the purpose of this Article is to construct the arguments against diversity that traditional scholarship has left underdeveloped. These include the proposition that today, in the twenty-first century, there are more reasons than ever to authorize diversity jurisdiction more selectively ...


The Federal Rules Of Inmate Appeals, Catherine T. Struve Oct 2017

The Federal Rules Of Inmate Appeals, Catherine T. Struve

Faculty Scholarship

The Federal Rules of Appellate Procedure turn fifty in 2018. During the Rules’ half-century of existence, the number of federal appeals by self-represented, incarcerated litigants has grown dramatically. This article surveys ways in which the procedure for inmate appeals has evolved over the past 50 years, and examines the challenges of designing procedures with confined litigants in mind. In the initial decades under the Appellate Rules, the most visible developments concerning the procedure for inmate appeals arose from the interplay between court decisions and the federal rulemaking process. But, as court dockets swelled, the circuits also developed local case management ...


Mendenhall V. Tassinari, 133 Nev. Adv. Op. 78 (Oct. 5, 2017), Rebecca L. Crooker Oct 2017

Mendenhall V. Tassinari, 133 Nev. Adv. Op. 78 (Oct. 5, 2017), Rebecca L. Crooker

Nevada Supreme Court Summaries

The Court determined that after a final judgment, pursuant to an Offer of Judgment under NRCP 68 offer is entered, both claim preclusion and the terms of the offer apply when a party seeks to relitigate claims. This is true even if the claim arises from facts discovered during the offer’s ten-day irrevocable acceptance period.


Surrogate Lawyering: Legal Guidance, Sans Lawyers, Paul R Tremblay Oct 2017

Surrogate Lawyering: Legal Guidance, Sans Lawyers, Paul R Tremblay

Boston College Law School Faculty Papers

Innovative thinkers within the access-to-justice (ATJ) movement have been experimenting with creative ideas for delivering meaningful legal guidance in an efficient way to clients struggling with civil legal needs. These efforts respond to the long-standing crisis in the delivery of legal services to disadvantaged persons, and the overwhelming need for legal advice in areas such as debt collection, housing, family, and immigration. One such imaginative proposal is what this Article calls “surrogate lawyering.” This innovation envisions public interest law firms using some scarce lawyer time to train and advise community-based organization (CBO) staff members to respond, in real time and ...


Tipping The Scales?: Maine Adopts The Continuing Negligent Treatment Doctrine In Baker V. Farrand, Michael P. Beers Oct 2017

Tipping The Scales?: Maine Adopts The Continuing Negligent Treatment Doctrine In Baker V. Farrand, Michael P. Beers

Maine Law Review

In Baker v. Farrand, the Maine Supreme Judicial Court, sitting as the Law Court, held that for a series of related negligent acts or omissions committed by a health care provider or practitioner, a single cause of action “accrues” under the Maine Health Security Act (hereinafter MHSA) on the date of the last act or omission that contributed to the plaintiff’s injury. Hence, in situations where a physician provides continuing negligent treatment to a patient in which each and every one of the physician’s actions are negligent, the MHSA’s three-year statute of limitations does not begin to ...


Litigating Police Misconduct: Does The Litigation Process Matter? Does It Work? Oct 2017

Litigating Police Misconduct: Does The Litigation Process Matter? Does It Work?

Northwestern Journal of Law & Social Policy

No abstract provided.


Restoring Bankruptcy’S Fresh Start, Jonathan S. Hermann Oct 2017

Restoring Bankruptcy’S Fresh Start, Jonathan S. Hermann

Fordham Law Review

The discharge injunction, which allows former debtors to be free from any efforts to collect former debt, is a primary feature of bankruptcy law in the United States. When creditors have systemically violated debtors’ discharge injunctions, some debtors have attempted to challenge those creditors through a class action lawsuit in bankruptcy court. However, the pervasiveness of class-waiving arbitration clauses likely prevents those debtors from disputing discharge injunction violations outside of binding, individual arbitration. This Note first discusses areas of disagreement regarding how former debtors may enforce their discharge injunctions. Then, it examines the types of disputes that allow debtors to ...


Affirming Firm Sanctions: The Authority To Sanction Law Firms Under 28 U.S.C. § 1927, Vincent J. Margiotta Oct 2017

Affirming Firm Sanctions: The Authority To Sanction Law Firms Under 28 U.S.C. § 1927, Vincent J. Margiotta

Fordham Law Review

A circuit split exists as to whether 28 U.S.C. § 1927 allows for an award of sanctions against nonattorneys or nonrepresentatives. Five federal courts of appeals—the Second, Third, Eighth, Eleventh, and the District of Columbia Circuits—hold that, to further the purpose of 28 U.S.C. § 1927, courts have the authority to sanction a law firm for the conduct of its attorneys, in addition to the authority to sanction individual officers of the court. The Sixth, Seventh, and Ninth Circuits disagree, concluding that the statute allows federal courts to sanction only individuals—“attorney[s] or other person ...


Confronting The Ghost: Legal Strategies To Oust Medical Ghostwriters, Deanna Minasi Oct 2017

Confronting The Ghost: Legal Strategies To Oust Medical Ghostwriters, Deanna Minasi

Fordham Law Review

Articles published in medical journals contribute significantly to public health by disseminating medical information to physicians, thereby influencing prescribing practices. However, the information guiding treatment decisions becomes distorted by selective publishing and medical ghostwriting, which negatively affects overall patient care. Although there is general consensus in the medical community that these practices of publication bias represent a moral failing, the issue is rarely framed as a wrong that necessitates legal consequences. This Note takes the stance that medical ghostwriting constitutes an act prohibited under the Racketeer Influenced and Corrupt Organizations Act (RICO) and argues that physicians fraudulently named as authors ...


Reinvigorating Commonality: Gender And Class Actions, Brooke D. Coleman, Elizabeth G. Porter Oct 2017

Reinvigorating Commonality: Gender And Class Actions, Brooke D. Coleman, Elizabeth G. Porter

Articles

In this Article, we examine the interplay of Rule 23(b)(2) class actions, feminism, and Title VII sex discrimination doctrine over the past fifty years to show that the theoretical concept of commonality—cohesion, unity—in the women’s movement has had a significant impact on the ability of women to seek collective redress for workplace discrimination through class actions. We describe how the four "waves” of feminism since the 1960s find corresponding analogues in the development of Title VII class action law. Beginning in the civil rights era, feminism became an entrenched part of mainstream America Over time ...


The Flsa Permission Slip: Determining Whether Flsa Settlements And Voluntary Dismissals Require Approval, Alex Lau Oct 2017

The Flsa Permission Slip: Determining Whether Flsa Settlements And Voluntary Dismissals Require Approval, Alex Lau

Fordham Law Review

The Fair Labor Standards Act of 1938 (FLSA) seeks to protect the poorest, most vulnerable workers by requiring that they be paid a minimum wage and compensated for their overtime labor. When employers do not pay their workers minimum wage or overtime compensation and thereby violate the FLSA, workers have the power to sue their employers for remuneration. Like many other types of cases, most FLSA cases settle before going to trial. Unlike those other types of cases, however, most courts have held that settlements of FLSA cases must be approved to be enforceable. Even though Federal Rule of Civil ...


In Re Petrobras Securities Litigation: Validade E AbrangêNcia Da CláUsula Arbitral, Bruno Meyerhof Salama Sep 2017

In Re Petrobras Securities Litigation: Validade E AbrangêNcia Da CláUsula Arbitral, Bruno Meyerhof Salama

Bruno Meyerhof Salama

O caso In Re Petrobras Securities Litigation envolve investidores da Petrobras que adquiriram securities tanto no Brasil quanto nos Estados Unidos e que ajuizaram uma class action em uma Corte americana. A Petrobras buscou afastar da jurisdição americana com uma discussão sobre a validade e abrangência da cláusula arbitral presente em seu Estatuto Social. Este trabalho explica os argumentos utilizados por cada uma das partes e esclarece a decisão proferida pela Corte americana. Ao final, são apresentadas algumas das implicações e dúvidas relevantes para empresas brasileiras emissoras de securities nos ...


El Derecho De Acceso A La Justicia Civil En Chile., Ricardo Lillo, Macarena Vargas Sep 2017

El Derecho De Acceso A La Justicia Civil En Chile., Ricardo Lillo, Macarena Vargas

Ricardo Lillo

El acceso a la justicia es un derecho fundamental que exige a los Estados garantizar que todos los ciudadanos que así lo requieran puedan recurrir al sistema de justicia y obtener una respuesta efectiva a una necesidad legal, normalmente asociada a la resolución de un conflicto o disputa de relevancia jurídica. Sin embargo, en nuestro país, por razones de diversa índole, una serie de asuntos de alta prevalencia entre la población, y que potencialmente no deberían representar mayor complejidad para el sistema, no logran ser conocidos por parte de la justicia ordinaria. Ello representa ...


Rethinking Judicial Review Of High Volume Agency Adjudication, Jonah B. Gelbach, David Marcus Sep 2017

Rethinking Judicial Review Of High Volume Agency Adjudication, Jonah B. Gelbach, David Marcus

Faculty Scholarship

Article III courts annually review thousands of decisions rendered by Social Security Administrative Law Judges, Immigration Judges, and other agency adjudicators who decide large numbers of cases in short periods of time. Federal judges can provide a claim for disability benefits or for immigration relief the sort of consideration that an agency buckling under the strain of enormous caseloads cannot. Judicial review thus seems to help legitimize systems of high volume agency adjudication. Even so, influential studies rooted in the gritty realities of this decision-making have concluded that the costs of judicial review outweigh whatever benefits the process creates.

We ...