Civil Procedure Commons^™

Structural Barriers To Inclusion In Arbitrator Pools, Nicole G. Iannarone

Washington Law Review

Critics increasingly challenge mandatory arbitration because the pools from which decisionmakers are selected are neither diverse nor inclusive. Evaluating diversity and inclusion in arbitrator pools is difficult due to the black box nature of mandatory arbitration. This Article evaluates inclusion in arbitrator pools through a case study on securities arbitration. The Article relies upon the relatively greater transparency of the Financial Industry Regulatory Authority (FINRA) forum. It begins by describing the unique role that small claims securities arbitration plays in maintaining investor trust and confidence in the securities markets before describing why ensuring that the FINRA arbitrator pool is both …

Trial Practice And Procedure, Brandon L. Peak, Joseph M. Colwell, Christopher B. Mcdaniel, Rory A. Weeks, Daniel E. Philyaw, L'Zandra V. Jones

Mercer Law Review

This Article addresses selected opinions and legislation of interest to the Georgia civil trial practitioner issued during the Survey period of this publication.

Endangered Claims, Brooke D. Coleman

William & Mary Law Review

Litigants—like organisms in an ecosystem—must evolve to survive our civil justice system. When procedural rules and doctrines that govern civil litigation change, litigants must respond. In some cases, litigants will adapt to the rules. In others, they will migrate to alternative fora to capitalize on the new environment’s rules. For those who cannot adapt or migrate, their claims will go extinct.

This Article chronicles the evolution story of federal civil litigation by examining how, in response to changing procedural rules and doctrines, parties and their claims adapt, migrate, or go extinct. It shows that throughout this evolution, claims by the …

Parity As Comparative Capacity: A New Empirics Of The Parity Debate, Meredith R. Aska Mcbride

University of Cincinnati Law Review

In 1977, Burt Neuborne published an article in the Harvard Law Review proclaiming that parity was a “myth”—that state courts could not be trusted to enforce federal constitutional rights. For the next 15 years, the question of parity (the equivalence of state and federal courts in adjudicating federal causes of action) was at the forefront of federal courts scholarship. But in the early 1990s, the parity debate ground to a halt after important commentators proclaimed it an empirical question that, paradoxically, could not be answered by any existing empirical methods. This article argues that proposition was unfounded at the time …

Manufacturing Sovereign State Mootness, Daniel Bruce

William & Mary Law Review

The idea that public defendants should receive any special treatment in the mootness context has been subject to intense criticism among commentators. Most notably, in the lead-up to the New York Rifle decision, Joseph Davis and Nicholas Reaves—two prominent First Amendment litigators from the Becket Fund for Religious Liberty—urged the Supreme Court to take the opportunity to correct the lower courts’ practice of blessing government abuse of the voluntary cessation doctrine. Indeed, the Supreme Court has never adopted a presumption in favor of government defendants such as the one applied by the Seventh Circuit in Killeen, and it failed to …

The Implausibility Standard For Environmental Plaintiffs: The Twiqbal Plausibility Pleading Standard And Affirmative Defenses, Celeste Anquonette Ajayi

Washington Law Review

Environmental plaintiffs often face challenges when pleading their claims. This is due to difficulty in obtaining the particular facts needed to establish causation, and thus liability. In turn, this difficulty inhibits their ability to vindicate their rights. Prior to the shift in pleading standards created by Bell Atlantic Corp. v. Twombly and Ashcroft v. Iqbal, often informally referred to as “Twiqbal,” plaintiffs could assert their claims through the simplified notice pleading standard articulated in Conley v. Gibson. This allowed plaintiffs to gain access to discovery, which aided in proving their claims.

The current heightened pleading standard …

The Debate Over Disclosure In Third-Party Litigation Finance: Balancing The Need For Transparency With Efficiency, Alec J. Manfre

Brooklyn Law Review

The market for third-party litigation financing (TPLF) in the United States is facing unprecedented growth and popularity. The ever-increasing complexity and cost of legal disputes, especially in the commercial context, has made third-party financing an invaluable resource for both litigants in need of capital and investors seeking to diversify their portfolios with nontraditional assets. However, as the market continues to boom, so does the risk that TPLF will be used unethically. Critics of the industry are calling on regulators at both the state and federal levels to implement comprehensive disclosure requirements for TPLF at the outset of all civil litigation …

The Powers Of The Inter-American Court Of Human Rights Towards The Implementation Of Gender Justice Laws At The National Level In South America, Kiana Therrien-Tomas Miss

Bridges: An Undergraduate Journal of Contemporary Connections

Although South America is earning international attention as an innovative global leader in various fields, it currently remains a nation steeped in traditional beliefs and practices. Despite prevailing laws against domestic violence, countless Latin American women proceed to be failed by the legal system. As South American society produces its own theory of gender justice, apprised by local realities and universally accepted norms, women's rights advocates and the Supreme Court can represent a decisive role in forming the discourse. Throughout this work, I aim to contemplate the powers of the Inter-American Court of Human Rights (IACHR) towards the implementation of …

Trial Practice And Procedure, John O'Shea Sullivan, Kevin R. Stone

Mercer Law Review

The 2020 survey period yielded noteworthy decisions relating to federal trial practice and procedure in the United States Court of Appeals for the Eleventh Circuit, several of which involved issues of first impression. This Article analyzes recent developments in the Eleventh Circuit, including significant rulings in the areas of statutory interpretation, subject matter jurisdiction, civil procedure, class actions, and other issues of interest to the trial practitioner.

Frivolous Defenses, Thomas D. Russell

Cleveland State Law Review

This Article is about civil procedure, torts, insurance, litigation, and professional ethics. The Article is the opening article in a conversation with Stanford Law Professor Nora Freeman Engstrom, who has written about the plaintiffs’ bar and settlement mill attorneys. The empirical center of this piece examines 356 answers to 298 car crash personal injury cases in Colorado’s district courts. The Article situates these cases within dispute pyramid elements, including the total number of miles-traveled within Colorado and the volume of civil litigation. The Article then analyzes the defense attorneys’ departures from the Colorado Rules of Civil Procedure, especially Rule 8. …

“More Than Tangential”: When Does The Public Have A Right To Access Judicial Records?, Jordan Elias

Journal of Law and Policy

 Public accountability requires open proceedings and access to documents filed with the courts. The strong policy favoring access to judicial records creates a presumption against sealing documents without a compelling reason.  The Ninth Circuit Court of Appeals recently held that this presumption of access arises when a proceeding relates “more than tangentially” to the merits. This is a low standard under which many types of motions qualify for the compelling reasons test.  With too much litigation occurring in secret, courts can use the “more than tangential” standard proactively to keep electronic case dockets available to citizens.

Don't You Know That You're Toxic? Cercla Section 113(H) Challenges, Sovereign Immunity, And Perfluoroalkyl Substances In Pennsylvania Drinking Water In Giovanni V. Navy, Stephanie J. Oppenheim

Villanova Environmental Law Journal

No abstract provided.

The Federal Rule Of Civil Procedure 37(E) And Achieving Uniformity Of Case Law On Sanctions For Esi Spoliation: Focusing On The “Intent To Deprive” Culpability Under Rule 37(E)(2), Jung Won Jun, Rockyoun Ihm

Catholic University Law Review

Federal Rule of Civil Procedure 37(e) was adopted in 2015 primarily to resolve the circuit split and promote uniformity of case law on ESI (electronically stored information) spoliation sanctions. This Article examines relevant case law under the new Rule 37(e) and finds that courts have treated similar spoliation conduct differently due to the lack of a clear standard for finding the spoliator's intent to deprive another party of the use of the destroyed ESI at issue. This inconsistency has been exacerbated by the courts’ inconsistent reliance on their inherent authority to sanction based on bad faith analyses. Therefore, this Article …

Criminal Advisory Juries: A Sensible Compromise For Jury Sentencing Advocates, Kurt A. Holtzman

Northwestern Journal of Law & Social Policy

Supreme Court Justice Neil Gorsuch recently noted that “juries in our constitutional order exercise supervisory authority over the judicial function by limiting the judge’s power to punish.” Yet in the majority of jurisdictions, contemporary judge-only sentencing practices neuter juries of their supervisory authority by divorcing punishment from guilt decisions. Moreover, without a chance to voice public disapproval at sentencing, juries are muted in their ability to express tailored, moral condemnation for distinct criminal acts. Although the modern aversion to jury sentencing is neither historically nor empirically justified, jury sentencing opponents are rightly cautious of abdicating sentencing power to laypeople. Nevertheless, …

Third-Party Standing And Abortion Providers: The Hidden Dangers Of June Medical Services, Elika Nassirinia

Northwestern Journal of Law & Social Policy

Standing is a long held, judicially-created doctrine intended to establish the proper role of courts by identifying who may bring a case in federal court. While standing usually requires that a party asserts his or her own rights, the Supreme Court has created certain exceptions that allow litigants to bring suit on behalf of third parties when they suffer a concrete injury, they have a “close relation” to the third party, and there are obstacles to the third party's ability to protect his or her own interests. June Medical Services, heard by the Supreme Court on June 29, 2020, …

Increasing Substantive Fairness And Mitigating Social Costs In Eviction Proceedings: Instituting A Civil Right To Counsel For Indigent Tenants In Pennsylvania, Robin M. White

Dickinson Law Review (2017-Present)

The U.S. Constitution provides criminal defendants the right to a court-appointed attorney but gives no similar protection to civil litigants. Although federal law does not supply any categorical rights to counsel for civil litigants, all 50 states have instituted the right in at least one category of civil law that substantially impacts individuals’ rights. Since 2017, several U.S. cities have enacted such a right for tenants facing eviction. In so doing, these cities responded to American families’ increasing rent burden, the recent publication of nationwide eviction data, the sociological research concerning the impact of eviction, and the lack of procedural …

Preserving Issues For Appeal In Nevada's Federal Courts, Micah Echols, Tom Stewart

Nevada Law Journal Forum

Attorneys in federal courts across the country, including in the District of Nevada, are aware of the age-old rule that, generally, new issues cannot be raised for the first time on appeal. The question then becomes, how are these issues properly raised, and preserved, in the district court so that they are preserved for an appeal before the United States Court of Appeals for the Ninth Circuit or, ultimately, the Supreme Court of the United States? This article provides guiding principles based upon federal case law and the Federal Rules of Civil Procedure to answer these questions on preserving error …

Preserving Issues For Appeal In The Nevada State District Courts Under Nevada's New 2019 Rules Of Civil Procedure, Micah Echols, Tom Stewart

Nevada Law Journal Forum

Practicing attorneys are aware of the age-old rule of appellate practice that new issues cannot be raised for the first time on appeal. But, how are these issues properly raised, and preserved, in the district courts so that they are preserved for an appeal before the Nevada Court of Appeals or the Nevada Supreme Court? This article provides guiding principles based upon Nevada case law and the newly-revised 2019 Nevada Rules of Civil Procedure to answer these questions on preserving error for an appeal in Nevada’s state courts.

Sonner V. Premier Nutrition Corp., Ruth Dapper, Bryce Young

Notre Dame Law Review Reflection

When sitting in diversity jurisdiction, must a federal court apply federal equitable principles when deciding state law claims, even if state law may provide a different outcome? That was the question before the United States Court of Appeals for the Ninth Circuit in the case of Sonner v. Premier Nutrition Corp. Although the Ninth Circuit’s published opinion relies on “seventy-five years” of unchanged law, the opinion joins a long list of cases that continue to help clarify the tenets from Erie Railroad Co. v. Tompkins and inform the courts and practitioners on the relationship between state and federal authority …

Shut Up And Pitch: Major League Baseball's Power Struggle With Minor League Players In Senne V. Kansas City Royals Baseball Corp., Bernadette Berger

Jeffrey S. Moorad Sports Law Journal

No abstract provided.

Lawyers On Auction - Protecting Class Members, Ittai Paldor

University of Cincinnati Law Review

The inadequacy of class settlements plagues mass litigation. Virtually all class actions settle, but a plethora of case law and academic writings shows that class attorneys often walk away from these settlements with a hefty fee, while class members receive illusory benefits. Class counsel may intentionally sell out class members by agreeing to a suboptimal settlement in return for increased fees. Class counsel may also genuinely miscalculate the best attainable settlement. In both cases, the mechanisms currently in place to protect class members—mainly court oversight—fail miserably.

This Article develops a simple solution: once a settlement is reached, appointment as class …

28 Usc § 1782 In Aid Of Foreign Arbitration: "A Tribunal By Any Other Name", Attilio M. Costabel

St. Thomas Law Review

No abstract provided.

Assertion And Hearsay, Richard Lloret

Dickinson Law Review (2017-Present)

This article explores the characteristics and functions of assertion and considers how the term influences the definition of hearsay under Federal Rule of Evidence 801. Rule 801(a) defines hearsay by limiting it to words and conduct intended as an assertion, but the rule does not define the term assertion. Courts and legal scholars have focused relatively little attention on the nature and definition of assertion. That is unfortunate, because assertion is a robust concept that has been the subject of intense philosophic study over recent decades. Assertion is not a mere cypher standing in for whatever speech or conduct one …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents and Special Thanks.

Neither Safe, Nor Legal, Nor Rare: The D.C. Circuit’S Use Of The Doctrine Of Ratification To Shield Agency Action From Appointments Clause Challenges, Damien M. Schiff

Seattle University Law Review

Key to the constitutional design of the federal government is the separation of powers. An important support for that separation is the Appointments Clause, which governs how officers of the United States are installed in their positions. Although the separation of powers generally, and the Appointments Clause specifically, support democratically accountable government, they also protect individual citizens against abusive government power. But without a judicial remedy, such protection is ineffectual—a mere parchment barrier.

Such has become the fate of the Appointments Clause in the D.C. Circuit, thanks to that court’s adoption—and zealous employment—of the rule that agency action, otherwise unconstitutional …

Table Of Contents, Seattle University Law Review

Seattle University Law Review

Table of Contents

Rock And Hard Place Arguments, Jareb Gleckel, Grace Brosofsky

Seattle University Law Review

This Article explores what we coin “rock and hard place” (RHP) arguments in the law, and it aims to motivate mission-driven plaintiffs to seek out such arguments in their cases. The RHP argument structure helps plaintiffs win cases even when the court views that outcome as unfavorable.

We begin by dissecting RHP dilemmas that have long existed in the American legal system. As Part I reveals, prosecutors and law enforcement officials have often taken advantage of RHP dilemmas and used them as a tool to persuade criminal defendants to forfeit their constitutional rights, confess, or give up the chance to …

The Alarming Legality Of Security Manipulation Through Shareholder Proposals, Artem M. Joukov, Samantha M. Caspar

Seattle University Law Review

Shareholder proposals attract attention from scholars in finance and economics because they present an opportunity to study both quasidemocratic decision-making at the corporate level and the impact of this decision-making on firm outcomes. These studies capture the effect of various proposals but rarely address whether regulations should allow many of them in the first place due to the possibility of stock price manipulation. Recent changes to shareholder proposal rules, adopted in September 2020, sought to address the potential for exploitation that some proposals create (but ultimately failed to do so). This Article shows the potential for apparently legal stock price …