Civil Procedure Commons^™

The Federal Rules At 75: Dispute Resolution, Private Enforcement Or Decisions According To Law?, James R. Maxeiner

Georgia State University Law Review

This essay is a critical response to the 2013 commemorations of the75th anniversary of the Federal Rules of Civil Procedure.The Federal Rules of Civil Procedure were introduced in 1938 to provide procedure to decide cases on their merits. The Rules were designed to replace decisions under the “sporting theory of justice”with decisions according to law.

By 1976, at midlife, it was clear that they were not achieving their goal. America’s proceduralists split into two sides about what to do. One side promotes rules that control and conclude litigation: e.g.,plausibility pleading, case management, limited discovery, cost indemnity for discovery, and summary …

Recent Reforms In Eu Law: Recognition And Enforcement Of Judgments, Samuel P. Baumgartner

Akron Law Faculty Publications

The European Union has just adopted a set of amendments to the Brussels I Regulation, which governs jurisdiction to adjudicate, parallel proceedings, and the recognition and enforcement of foreign judgments. This article discusses the Regulation and the adopted amendments regarding the recognition and enforcement of judgments and argues that these amendments are part of a deeper set of structural and conceptual changes in the law of transnational litigation in the European Union over the last two decades. The article concludes with an analysis of both the amendments and the underlying changes for litigants and law reformers in the United States, …

Recent Reforms In Eu Law: Recognition And Enforcement Of Judgments, Samuel P. Baumgartner

Samuel P. Baumgartner

The European Union has just adopted a set of amendments to the Brussels I Regulation, which governs jurisdiction to adjudicate, parallel proceedings, and the recognition and enforcement of foreign judgments. This article discusses the Regulation and the adopted amendments regarding the recognition and enforcement of judgments and argues that these amendments are part of a deeper set of structural and conceptual changes in the law of transnational litigation in the European Union over the last two decades. The article concludes with an analysis of both the amendments and the underlying changes for litigants and law reformers in the United States, …

Understanding The Obstacles To The Recognition And Enforcement Of U.S. Judgments Abroad, Samuel P. Baumgartner

Akron Law Faculty Publications

Questions of recognition and enforcement of foreign judgments have entered center stage. Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments. The U.S. litigation surrounding a multibillion-dollar Ecuadoran judgment against Chevron indicates that the stakes in some of these cases can be high indeed. This rising importance of questions of judgments recognition has not been lost on lawmakers. In November of 2011, the Subcommittee on Courts, Commercial and Administrative Law of the U.S. House of Representatives’ Judiciary Committee held hearings on whether to …

Understanding The Obstacles To The Recognition And Enforcement Of U.S. Judgments Abroad, Samuel P. Baumgartner

Samuel P. Baumgartner

Questions of recognition and enforcement of foreign judgments have entered center stage. Recent empirical work suggests that there has been a marked increase in the frequency with which U.S. courts are asked to recognize and enforce foreign judgments. The U.S. litigation surrounding a multibillion-dollar Ecuadoran judgment against Chevron indicates that the stakes in some of these cases can be high indeed. This rising importance of questions of judgments recognition has not been lost on lawmakers. In November of 2011, the Subcommittee on Courts, Commercial and Administrative Law of the U.S. House of Representatives’ Judiciary Committee held hearings on whether to …

Changes In The European Union's Regime Of Recognizing And Enforcing Judgments And Transnational Litigation In The United States, Samuel P. Baumgartner

Akron Law Faculty Publications

The European Commission has proposed to amend (recast) the Brussels I Regulation, which governs jurisdiction to adjudicate, parallel proceedings, and judgments recognition within the European Union. Although much of the Brussels I Regulation is simply the 1968 Brussels Convention cast into European Union legislation, the proposed amendments are part of a deeper set of structural and conceptual changes in the law of transnational litigation within the Union over the past couple of decades. Understanding these changes is essential to understanding what drives the proposed amendments and what is likely to follow.

In this paper – presented at the symposium Our …

Changes In The European Union's Regime Of Recognizing And Enforcing Judgments And Transnational Litigation In The United States, Samuel P. Baumgartner

Samuel P. Baumgartner

The European Commission has proposed to amend (recast) the Brussels I Regulation, which governs jurisdiction to adjudicate, parallel proceedings, and judgments recognition within the European Union. Although much of the Brussels I Regulation is simply the 1968 Brussels Convention cast into European Union legislation, the proposed amendments are part of a deeper set of structural and conceptual changes in the law of transnational litigation within the Union over the past couple of decades. Understanding these changes is essential to understanding what drives the proposed amendments and what is likely to follow.

In this paper – presented at the symposium Our …

The Word Commons And Foreign Laws, Thomas O. Main

Scholarly Works

Dual trends are colliding in U.S. courts. The first trend is a tidal wave of cases requiring courts to engage the domestic laws of foreign legal systems; globalization is the principal driver of this escalation. The second trend is a profound and ever-increasing skepticism of our ability to understand foreign law; the literature of pluralism and postmodernism has illuminated the uniquely local, language-dependent, and culturally embedded nature of law. Courts cope with this dissonance by finding some way to avoid the application of foreign law. But these outcomes are problematic because parties are denied access to court or have their …

Defining Civil Disputes: Lessons From Two Jurisdictions, Elizabeth Thornburg, Camille Cameron

Articles, Book Chapters, & Popular Press

Court systems have adopted a variety of mechanisms to narrow the issues in dispute and expedite litigation. This article analyses the largely unsuccessful attempts in two jurisdictions - the United States and Australia - to achieve early and efficient issue identification in civil disputes. Procedures that rely on pleadings to provide focus have failed for centuries, from the common (English) origins of these two systems to their divergent modern paths. Case management practices that are developing in the United States and Australia offer greater promise in the continuing quest for early, efficient dispute definition. Based on a historical and contemporary …

The Price Of Access To The Civil Courts In Australia: Old Problems And New Solutions - A Commercial Litigation Funding Case Study, Camille Cameron

Articles, Book Chapters, & Popular Press

In the past decade litigation funding companies have assumed an increasingly prominent role in commercial litigation and class actions in Australia. The growth of commercial litigation funding is a predictable response to various features of Australia’s costs and fee allocation rules and practices, including the “loser pays” rule, the prohibition on lawyer’s charging contingency fees, the hourly billing practices of lawyers, and the open-ended and unpredictable nature of much civil litigation. This chapter explores the growth of commercial litigation funding in Australia and uses it as a window through which to view how Australia’s costs and fee allocation rules operate …

Pleading And Access To Civil Procedure: Historical And Comparative Reflections On Iqbal, A Day In Court And A Decision According To Law, James Maxeiner

All Faculty Scholarship

The Iqbal decision confirms the breakdown of contemporary American civil procedure. We know what civil procedure should do, and we know that our civil procedure is not doing it. Civil procedure should facilitate determining rights according to law. It should help courts and parties apply law to facts accurately, fairly, expeditiously and efficiently. This article reflects on three historic American system failures and reports a foreign success story.

Pleadings can help courts do what we know courts should do: decide case on the merits, accurately, fairly, expeditiously and efficiently. Pleadings facilitate a day in court when focused on deciding according …

Civil Procedure Reform In Switzerland And The Role Of Legal Transplants, Samuel P. Baumgartner

Akron Law Faculty Publications

On January 1, 2011, Swiss courts will begin operating under a unified federal code of civil procedure for the first time in the country’s history. This code has been exceedingly long in the making. In this chapter, I use the new code and its history to engage the editors’ claim that the old categories of common law and civil law procedure are crumbling, thus making differences among countries within the common law or civil law world more important than differences across the divide.

First, the new Swiss code of civil procedure includes a number of features that may look like …

Civil Procedure Reform In Switzerland And The Role Of Legal Transplants, Samuel P. Baumgartner

Samuel P. Baumgartner

On January 1, 2011, Swiss courts will begin operating under a unified federal code of civil procedure for the first time in the country’s history. This code has been exceedingly long in the making. In this chapter, I use the new code and its history to engage the editors’ claim that the old categories of common law and civil law procedure are crumbling, thus making differences among countries within the common law or civil law world more important than differences across the divide.

First, the new Swiss code of civil procedure includes a number of features that may look like …

Two Valuable Treatises On Civil Procedure, Geoffrey C. Hazard Jr.

All Faculty Scholarship

No abstract provided.

Jurisdictional Conflict And Jurisdictional Equilibration: Paths To A Via Media, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Summary Adjudication In United States Civil Procedure, Mary J. Davis

Law Faculty Scholarly Articles

This article uses one of the high profile mass tort cases of recent decades, the complex silicone gel-filled breast implant products liability litigation, to evaluate summary adjudication measures. Recognizing that not all claims filed are complex tort claims (just the most interesting ones), where commercial claims present the opportunity for use of summary proceedings, those will be discussed as well, particularly regarding mechanisms by which security for a creditor-plaintiffs claim can be obtained prior to a favorable verdict.

While preparing this Report, it became clear that the author has a particular view of what constitutes a "summary adjudication" procedure, but …

Civil Procedure In The Province Of Quebec, J. Armitage Ewing, K. C.

Indiana Law Journal

Address of Hon. J. Armitage Ewing, K. C., of the Montreal, Canada, Bar, at the Annual Meeting of the Indiana State Bar Association, September 16, 1938.