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Articles 1 - 10 of 10
Full-Text Articles in Civil Procedure
Deciding When To Decide - Appellate Procedure And Legal Change, Aaron-Andrew P. Bruhl
Deciding When To Decide - Appellate Procedure And Legal Change, Aaron-Andrew P. Bruhl
Aaron-Andrew P. Bruhl
No abstract provided.
Police Misconduct, Video Recording, And Procedural Barriers To Rights Enforcement, Howard M. Wasserman
Police Misconduct, Video Recording, And Procedural Barriers To Rights Enforcement, Howard M. Wasserman
Howard M Wasserman
The story of police reform and of "policing the police" has become the story of video and video evidence, and "record everything to know the truth" has become the singular mantra. Video, both police-created and citizen-created, has become the singular tool for ensuring police accountability, reforming law enforcement, and enforcing the rights of victims of police misconduct. This Article explores procedural problems surrounding the use of video recording and video evidence to counter police misconduct, hold individual officers and governments accountable, and reform departmental policies, regulations, and practices. It considers four issues: 1) the mistaken belief that video can "speak …
Procedural Due Process Claims, Erwin Chemerinsky
Procedural Due Process Claims, Erwin Chemerinsky
Erwin Chemerinsky
No abstract provided.
Resolving Cases On The Merits, Jay Tidmarsh
Resolving Cases On The Merits, Jay Tidmarsh
Jay Tidmarsh
Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.
Religion And Procedure, Robert E. Rodes
Religion And Procedure, Robert E. Rodes
Robert Rodes
God has no use for procedural rules since He knows the full truth and is able to exercise absolute justice simultaneously alongside complete mercy. This paper discusses the religious significance of legal rules of procedure in light of this truth. It finds that since we, unlike God, are inherently fallible, we are forced to implement procedures in the legal pursuit of our goals of truth, justice, and mercy. These procedures remain imperfect in implementing these goals, as compromises must often be made between competing values such as mercy on one hand and justice on the other. Nevertheless, though legal procedure …
Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky
Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky
Alex Stein
This Article demonstrates that all intellectual property defenses fit into three conceptual categories: general, individualized, and class defenses. A general defense challenges the validity of the plaintiff’s intellectual property right. When raised successfully, it annuls the plaintiff’s right and relieves not only the defendant, but also the entire world of the duty to comply with it. An individualized defense is much narrower in scope: Its successful showing defeats the specific infringement claim asserted by the plaintiff, but leaves the plaintiff’s right intact. Class defenses form an in-between category: They create an immunity zone for a certain group of users to …
Evidence, Probability, And The Burden Of Proof, Ronald J. Allen, Alex Stein
Evidence, Probability, And The Burden Of Proof, Ronald J. Allen, Alex Stein
Alex Stein
This Article analyzes the probabilistic and epistemological underpinnings of the burden-of-proof doctrine. We show that this doctrine is best understood as instructing factfinders to determine which of the parties’ conflicting stories makes most sense in terms of coherence, consilience, causality, and evidential coverage. By applying this method, factfinders should try—and will often succeed—to establish the truth, rather than a statistical surrogate of the truth, while securing the appropriate allocation of the risk of error. Descriptively, we argue that this understanding of the doctrine—the “relative plausibility theory”—corresponds to our courts’ practice. Prescriptively, we argue that the relative-plausibility method is operationally superior …
The Relational Contingency Of Rights, Alex Stein, Gideon Parchomovsky
The Relational Contingency Of Rights, Alex Stein, Gideon Parchomovsky
Alex Stein
In this Article, we demonstrate, contrary to conventional wisdom, that all rights are relationally contingent. Our main thesis is that rights afford their holders meaningful protection only against challengers who face higher litigation costs than the rightholder. Contrariwise, challengers who can litigate more cheaply than a rightholder can force the rightholder to forfeit the right and thereby render the right ineffective. Consequently, in the real world, rights avail only against certain challengers but not others. This result is robust and pervasive. Furthermore, it obtains irrespectively of how rights and other legal entitlements are defined by the legislator or construed by …
The Timeliness Of Removal And Multiple-Defendant Lawsuits, Paul Lund
The Timeliness Of Removal And Multiple-Defendant Lawsuits, Paul Lund
Paul Lund
Although the procedure for removing cases from state to federal court has existed for nearly 225 years, removal remains one of the most controversial aspects of federal jurisdictional law. Each year, more than 30,000 civil cases are removed from state to federal court, and many of those cases involve more than one defendant. One of the most frequently litigated issues in these cases has involved when the notice of removal must be filed. Prior to a recent amendment, the statute governing removal, 28 U.S.C. § 1446(b), required that a notice of removal be filed within thirty days of service on …
Resolving Cases On The Merits, Jay Tidmarsh
Resolving Cases On The Merits, Jay Tidmarsh
Jay Tidmarsh
Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.