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Articles 1 - 10 of 10
Full-Text Articles in Civil Procedure
Exploring Methods To Improve Management And Fairness In Pro Se Cases: A Study Of The Pro Se Docket In The Southern District Of New York, Jonathan D. Rosenbloom
Exploring Methods To Improve Management And Fairness In Pro Se Cases: A Study Of The Pro Se Docket In The Southern District Of New York, Jonathan D. Rosenbloom
Fordham Urban Law Journal
This Article describes a study done in the Southern District of New York on pro se cases. Part I details the lack of current data and the methods used in the study. Part II provides the results of the study amd attempts to identify the areas of pro se litigation in which litigants are faced with the most problems and where improvement is needed. It also discusses the effects of the Prison Litigation Reform Act. Part III suggests a plan that will help courts run more smoothly in assisting pro se litigants.
A Trial Judge's Perspective - Promoting Justice And Fairness While Protecting Privilege, Honorable Marian Blank Horn
A Trial Judge's Perspective - Promoting Justice And Fairness While Protecting Privilege, Honorable Marian Blank Horn
Fordham Urban Law Journal
This Article discusses the topic of privileged communications and ethics in the courtroom. The Article offers the unique perspective of a trial judge and his courtroom interactions with lawyers and witnesses alike. It discusses cases relating to established courtroom privileges, such as marriage, attorney/client and priest/penitent, as well as qualified privileges such as the journalism privilege. Further, it discusses the potential for new or novel privileges, such as the accountant/auditor-client work product privilege and the academic peer review privilege. Finally, the Article lays out suggestions for trial judges for how to best utilize the privilege rules while simultaneously promoting fairness …
Automatic Stays And Governmental Operations: How New York State Protects The Government From The Poor, Jack E. Pace Iii
Automatic Stays And Governmental Operations: How New York State Protects The Government From The Poor, Jack E. Pace Iii
Fordham Urban Law Journal
This note discusses two New York state procedural rules that endanger the poor by giving special treatment to the defendant whom low income plaintiffs most often face in court. First, the New York Civil Practice Law and Rules ("CPLR") allows the government an automatic stay, pending appeal, of all proceedings to enforce an adverse judgment or order. Second, The New York Court of Appeals' "governmental operations" rule creates a presumption against certifying class actions when the challenged action is a governmental operation. The author argues that these rules unfairly limit the ability of poor people to recover against the government …
The Compatibility Of A Federal Magistrate's Final Judgment With Nonmutual Issue Preclusion , Allison G. Danzig
The Compatibility Of A Federal Magistrate's Final Judgment With Nonmutual Issue Preclusion , Allison G. Danzig
Fordham Urban Law Journal
This Note examines the propriety of issue preclusion as applied to a magistrate's factual determination by providing an overview of section 636(c) of the Magistrate Act of 1979 and the decisions holding its provisions constitutional. It briefly looks at the expanded use of issue preclusion, which is largely due to the elimination of the mutuality agreement. After reviewing the policies that are promoted through the use of issue preclusion in such a manner, the Note concludes that nonmutual issue preclusion should apply to a magistrate's determination in a civil trial only if the parties are aware of the consequences that …
Pendant Party Jurisdiction And Section 1983: When Has Congress "By Implication Negated" Jurisdiction?, Peter E. Schomer
Pendant Party Jurisdiction And Section 1983: When Has Congress "By Implication Negated" Jurisdiction?, Peter E. Schomer
Fordham Urban Law Journal
This Note discusses how many lower federal courts, in deciding when to allow state claims to be brought in federal court under the doctrine of pendant party jurisdiction, have interpreted the Supreme Court's "Aldinger test" in a far more restrictive manner than what the Supreme Court had intended. Additionally, the Note traces the history of the doctrines of pendant jurisdiction, pendant party jurisdiction and ancillary jurisdiction. The Note also discusses of the dispute raging about the actual validity of pendant party jurisdiction, ,focusing particularly on section 1983 cases. In conclusion, the Note articulates the process and analysis a court must …
For Every Weapon, A Counterweapon: The Revival Of Rule 68, John P. Woods
For Every Weapon, A Counterweapon: The Revival Of Rule 68, John P. Woods
Fordham Urban Law Journal
Rule 68 of the Federal Rules of Civil Procedure applies generally where a non-moving party's settlement offer is rejected, and the court judgment awarded to the moving party, or claimant, is for less than the prior offer. The non-moving party may then be entitled to "costs incurred after the making of the offer." In Marek v. Chesny, the Court made it clear that "costs" includes attorney's fees. Congress should consider revising Rule 68 to clarify its application. However, Rule 68 appropriately induces plaintiffs to thoroughly consider a defendant's offer, under threat that rejection of the offer may include reducing attorney's …
The Effects Of Hensley V. Eckerhart On The Award Of Attorney's Fees, E. Wayne Powell
The Effects Of Hensley V. Eckerhart On The Award Of Attorney's Fees, E. Wayne Powell
Fordham Urban Law Journal
The traditional "American Rule" regarding attorney fees did not allow for prevailing parties to collect attorney's fees from the unsuccessful party. In response to the Supreme Court's decision in Alyeska v. Wilderness Society, which reaffirmed the American Rule and its limited exceptions, Congress passed the Civil Rights Attorneys Fees Award Act of 1976. In its wake, courts began awarding attorneys fees to prevailing parties. The Supreme Court's decision in Hensley v. Eckerhart, focused on the correlation between the degree of success of prevailing plaintiffs and the amount of the attorney's fees awarded. This Article discusses the effects on fee awards …
N.Y. General Municipal Law Section 50-E(5): Ameliorating New York's Notice Of Claim Requirements, Lawrence M. Nessenson, Lawrence M. Nessenson, Lawrence M. Nessenson, Lawrence M. Nessenson
N.Y. General Municipal Law Section 50-E(5): Ameliorating New York's Notice Of Claim Requirements, Lawrence M. Nessenson, Lawrence M. Nessenson, Lawrence M. Nessenson, Lawrence M. Nessenson
Fordham Urban Law Journal
A multitude of provisions scattered throughout New York's consolidated and unconsolidated laws require that plaintiffs serve "notice of claim" of their tort actions on defendant public corporations. New York General Municipal Law section 50-e governs New York procedure for serving this notice of claim upon public corporations including when and upon whom service should be made, the form and contents of the notice of claim, and how notice of claim may be served. Compliance with the requirements of section 50-e is a condition precedent to commencement of a tort action against a public corporation wherever such notice of claim is …
The Right To Disclosure Of Nlrb Documents Under The Freedom Of Information Act
The Right To Disclosure Of Nlrb Documents Under The Freedom Of Information Act
Fordham Urban Law Journal
This note analyzes the Freedom of Information Act (FOIA), especially as it pertains to the National Labor Relations Board (NLRB), which has been particularly affected by requests for disclosure of documents. The NLRB's function is to settle labor disputes and remedy unfair labor practices with a minimum of delay. The note argues that allowing Board proceedings to be enjoined via pre-hearing FOIA suits only encourages parties to use these suits as dilatory measures. The note suggests that the FOIA was never intended to be used as a tool of discovery and argues for a stop to the increase in discovery-injunction …
De Minimis Curat Lex, Brian G. Driscoll
De Minimis Curat Lex, Brian G. Driscoll
Fordham Urban Law Journal
There is a great deal of civil litigation in Urban areas and courts are unable to deal efficiently and justly with the cases that are brought before them. Additionally, there are many cases concerning a small amount of money and disputes in which citizens are in lower and middle economic classes that are never brought before the courts. The nature of the judicial system discourages these small claims but even these relatively small claims may be significant in relation to the income of some of these potential litigants. Handling this problem needs to be done through the small claims court. …