Civil Procedure Commons^™

Procedure's Magical Number Three: Psychological Bases For Standards Of Decision, Kevin M. Clermont

Cornell Law Faculty Publications

So many procedural doctrines appear, after research and teaching, to trifurcate. An obvious example is that kind of standard of decision known as the standard of proof: what in theory might have been a continuum of standards divides in practice into the three distinct standards of preponderance of the evidence, clear and convincing evidence, and proof beyond a reasonable doubt. Other examples suggest both that I am not imagining the prominence of three and that more than coincidence is at work.

Part I of this essay describes the role of the number three in procedure, with particular regard to standards …

Ex Parte Interviews With Enterprise Employees: A Post-Upjohn Analysis, Louis A. Stahl

Washington and Lee Law Review

No abstract provided.

Studying Civil Litigation Through The Class Action, Bryant G. Garth

Indiana Law Journal

No abstract provided.

Adjudicatory Jurisdiction And Class Actions, Diane P. Wood

Indiana Law Journal

No abstract provided.

Class Actions And Duplicative Litigation, Edward F. Sherman

Indiana Law Journal

No abstract provided.

Rethinking The Class Action: A Policy Primer On Reform, John C. Coffee Jr.

Indiana Law Journal

No abstract provided.

A Proposal To View Patent Claim Nonobviousness From The Policy Perspective Of Federal Rule Of Civil Procedure 52(A), Bradley G. Lane

University of Michigan Journal of Law Reform

This Note analyzes the scope of appellate review that should be accorded to a trial judge's determination of nonobviousness. Part I details the condition of nonobviousness and how it has evolved into the principal obstacle to patentability. Part II analyzes the Supreme Court and appellate precedents on the scope of review on this issue. Part III evaluates the policy underpinnings of Rule 52(a) and applies a two-pronged analysis to the nonobviousness requirement to determine whether the clearly erroneous standard of review is appropriate. This Note concludes that the treatment of the nonobviousness determination as a question of law cannot be …

Alleging Demand Futility In Federal Court

Washington and Lee Law Review

No abstract provided.

The Excessive History Of Federal Rule 15(C) And Its Lessons For Civil Rules Revision, Harold S. Lewis Jr.

Michigan Law Review

This case study of one Federal Rule of Civil Procedure is designed to suggest affirmative answers to these questions. My focus is on the surprisingly extensive body of case law, culminating in the Supreme Court's 1986 decision in Schiavone v. Fortune, that parses the second sentence of Federal Rule 15(c). Added in 1966, that sentence attempts to set standards for the relation back of party-changing amendments to pleadings. A more prototypically pedestrian, less prepossessing topic of the traditionalist type could scarcely be imagined. Yet a review of its history brings larger points into sharp relief: something is seriously amiss in …

The Costs Of Complexity, Stephen B. Burbank

Michigan Law Review

A Review of Complex Litigation: Cases and Materials on Advanced Civil Procedure by Richard L. Marcus and Edward F. Sherman

Burying (With Kindness) The Felicific Calculus Of Civil Procedure, Linda S. Mullenix

Vanderbilt Law Review

On January 2, 1986, Judge Richard Posner of the United States Court of Appeals for the Seventh Circuit announced to an astonished legal profession, not to mention the unsuspecting attorneys-of-record, that, in the future, the Seventh Circuit would decide whether to grant or deny a preliminary injunction by applying the following simple formula:

P x Hp > (1-P) x Hd

With one fell swoop of his algebraic-judicial pen, Judge Posner not only stirred the deepest math anxieties of the practicing bar, but revolutionized preliminary injunction law. Despite Judge Posner's protestations that his simple formula was not "offered as a new legal …

The Costs Of Complexity, Stephen B. Burbank

All Faculty Scholarship

No abstract provided.

Discovery In State And Federal Smcra Proceedings, G. Daniel Kelley Jr., Stephen M. Terrell

West Virginia Law Review

No abstract provided.

Law Of The Case: A Judicial Puzzle In Consolidated And Transferred Cases And In Multidistrict Litigation, Joan E. Steinman

All Faculty Scholarship

No abstract provided.

Ii. Civil Procedure

Washington and Lee Law Review

No abstract provided.

Jury Instructions For Civil And Criminal Rico Cases Approved By: Rico Cases Committee, Criminal Justice Section Of The American Bar Association

BYU Law Review

No abstract provided.

The American Advantage: The Value Of Inefficient Litigation, Samuel R. Gross

Articles

In a recent article, The German Advantage in Civil Procedure,1 Professor John Langbein claims that the German system of civil litigation is superior to the American; in an earlier article he makes a parallel claim about German criminal procedure.2 Roughly, Professor Langbein argues that by comparison to the German process, American litigation is overly complex, expensive, slow, and unpredictable - in short, inefficient.3 Professor Langbein is not the first and will not be the last to criticize American legal institutions in these terms, but he expresses this criticism particularly well: he is concise and concrete, he describes American practice by …

Summary Judgment And Case Management, William W. Schwarzer

Faculty Scholarship

No abstract provided.

Offensive Collateral Estoppel In Kentucky: A Deadly Weapon Or A Paper Tiger?, Howard E. Frasier Jr.

Kentucky Law Journal

No abstract provided.

Civil Procedure - Discovery Of Medical Records In A Corporate Negligence Action - Shelton V. Morehead Memorial Hospital, G. Bruce Park

Campbell Law Review

This Note will examine the impact of the Shelton decision on requests for the production of hospital records. The Note will emphasize the application of Shelton to corporate negligence actions against a hospital for breach of a duty owed by the hospital directly to the patient. The Note will suggest that, although the Shelton court limited the availability of discovery, diligent plaintiffs may find trial courts less likely to allow a blanket privilege for hospitals claiming immunity from discovery for records conveniently labeled as products of medical review committees. This Note will argue that the plaintiff in a corporate negligence …

Controlling The Civil Jury: Towards A Functional Model Of Justification, Pamela J. Stephens

Kentucky Law Journal

No abstract provided.

Whether Disclosure Of Work Product To A Witness In Preparation For Testifying Waives The Protection Of Federal Rule Of Civil Procedure 26(B)(3), Gene Lynn Humphreys

Kentucky Law Journal

No abstract provided.

California Personal Injury Statutes Of Limitations: The Modern Tort And The Judicial Abandonment Of An Archaic Doctrine, Steven J. Andre

Steven J. Andre

Analysis of the judicial erosion of legislative efforts to impose timelines on plaintiffs seeking relief for injuries in light of the development of the modern tort in California.

Sin, Scandal And Substantive Due Process: Personal Jurisdiction And Pennoyer Reconsidered, Wendy Collins Perdue

Law Faculty Publications

Professor Perdue recounts the underlying story of the U.S. Supreme Court's seminal personal jurisdiction case, Pennoyer v. Neff.

Nonparty Document Discovery From Corporations And Governmental Entities Under The Federal Rules Of Civil Procedure, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

This Article will analyze the various approaches courts follow when deciding if a nonparty can be compelled to produce documents located outside the judicial district where a rule 45 subpoena duces tecum is issued. Part I will review the procedure for nonparty document discovery and discuss the decisional law applying the enforcement provisions of rule 45. Part II will analyze the jurisdictional principles used by federal district courts to determine when documents under the control of nonparties, and not located within the territorial limits of the court, should be produced for discovery purposes. Part III will recommend the appropriate approach …

Civil Practice, Jay C. Carlisle

Elisabeth Haub School of Law Faculty Publications

During the Survey year, legislation was enacted relating to twenty-seven of the sixty-five articles of the CPLR. Additionally, there have been significant developments in the decisional law of res judicata. These and other areas should be of interest to the practitioner.

There's No Reason For It; It's Just Our Policy: The Well-Pleaded Complaint Rule Sabotages The Purposes Of Federal Question Jurisdiction, Donald L. Doernberg

Elisabeth Haub School of Law Faculty Publications

This Article is presented in three parts. Section I traces the statutory and case development of federal question jurisdiction, both under the constitutional and statutory “arising under”' language. Section II demonstrates the problems that the Mottley rule has caused in building a rational system of federal question jurisdiction, particularly in cases seeking declaratory judgments. Section III contends that the Mottley rule is irrational because it is a mechanical rule that ignores important policy considerations underlying the existence of federal question jurisdiction. Section III goes on to suggest that federal question jurisdiction should depend upon the centrality of the federal issue …

Personal Jurisdiction And The Stream Of Commerce, A. Kimberley Dayton

Faculty Scholarship

This article evaluates the stream of commerce theory of personaljurisdiction in light of existing precedent and the constitutionalimperative of due process. Part II briefly describes the factualbackground of Asahi and the various opinions rendered in the case.Part m outlines the development of jurisdictional doctrine since International Shoe, emphasizing the meaning of "purposeful availment" and its fluid role in the due process equation governing statecourt jurisdiction. Part IV then traces the evolution of the stream of commerce theory since International Shoe. Part V examines and rejects criticisms of the stream of commerce theory, and concludes that under any reasonabre interpretation of …

A Judicial Perspective On Expert Discovery Under Federal Rule 26(B)(4): An Empirical Study Of Trial Court Judges And A Proposed Amendment, 20 J. Marshall L. Rev. 377 (1987), David S. Day, Charvin Dixon

UIC Law Review

No abstract provided.

Illusion And Reality In Regulating Lawyer Performance: Rethinking Rule 11, Lawrence M. Grosberg

Villanova Law Review

No abstract provided.