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Articles 1 - 30 of 262
Full-Text Articles in Civil Procedure
Centripetal Forces: Multidistrict Litigation And Its Parts, Catherine R. Borden, Emery G. Lee Iii, Margaret S. Williams
Centripetal Forces: Multidistrict Litigation And Its Parts, Catherine R. Borden, Emery G. Lee Iii, Margaret S. Williams
Louisiana Law Review
The article focuses on various issues related to multidistrict litigation (MDL). Topics discussed include the regulation of MDL proceedings under the Multidistrict Litigation Act of 1968, the role of the U.S. lawyers in centralized proceedings of tag-along cases, and the role of panel of judges in adjudicating MDL.
The Second Decentralisation Of Competition Law — A Must For An Orderly Administration Of Justice In The Eu, Emanuela Matei, Valentin Mircea
The Second Decentralisation Of Competition Law — A Must For An Orderly Administration Of Justice In The Eu, Emanuela Matei, Valentin Mircea
Emanuela A. Matei
The article relies upon the postulate that the European system of competition enforcement could benefit from a transplantation of a lot vaster American experiences in the field of private litigation.
Supreme Court, New York County, Robinson V. Finkel, Denise Shanley
Supreme Court, New York County, Robinson V. Finkel, Denise Shanley
Touro Law Review
No abstract provided.
First Amendment Decisions - 2002 Term, Joel Gora
First Amendment Decisions - 2002 Term, Joel Gora
Touro Law Review
No abstract provided.
Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz
Lawrence V. Texas: The Decision And Its Implications For The Future, Martin A. Schwartz
Touro Law Review
No abstract provided.
Discrimination Cases Of The 2002 Term, Eileen Kaufman
Discrimination Cases Of The 2002 Term, Eileen Kaufman
Touro Law Review
No abstract provided.
Qualified Immunity: The Constitutional Analysis And Its Application, Karen Blum
Qualified Immunity: The Constitutional Analysis And Its Application, Karen Blum
Touro Law Review
No abstract provided.
Guidelines And Best Practices For Large And Mass Tort Mdls (First Edition), Duke Law School Center For Judicial Studies
Guidelines And Best Practices For Large And Mass Tort Mdls (First Edition), Duke Law School Center For Judicial Studies
Bolch Judicial Institute Publications
Mass-tort MDLs dominate the federal civil docket, yet they present enormous challenges to transferee judges assigned to manage them. There is little official guidance and no rules specific to the management of mass-tort MDLs, often requiring the transferee judge to develop procedures out of whole cloth.
Beginning in 2013, the Bolch Judicial Institute (then the Center for Judicial Studies) sought to address this issue through a series of annual bench-bar conferences. From these conferences came the Guidelines and Best Practices for Large and Mass-Tort MDLs document, which is designed to help judges and legal practitioners understand and efficiently navigate complex …
Why Heightened Pleading - Why Now?, Jeffrey J. Rachlinski
Why Heightened Pleading - Why Now?, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
No abstract provided.
Reconciling Experimental Incoherence With Real-World Coherence In Punitive Damages, Theodore Eisenberg, Jeffrey J. Rachlinski, Martin T. Wells
Reconciling Experimental Incoherence With Real-World Coherence In Punitive Damages, Theodore Eisenberg, Jeffrey J. Rachlinski, Martin T. Wells
Jeffrey J. Rachlinski
Experimental evidence generated in controlled laboratory studies suggests that the legal system in general, and punitive damages awards in particular, should display an incoherent pattern. According to the prediction, inexperienced decisionmakers, such as juries, should fail to convert their qualitative judgments of defendants' conduct into consistent, meaningful dollar amounts. This Article tests this prediction and finds modest support for the thesis that experience across different types of cases will lead to greater consistency in awards. Despite this support, numerous studies of damage awards in real cases detect a generally sensible pattern of damage awards. This Article tries to reconcile the …
Juries: Arbiters Or Arbitrary?, Jeffrey J. Rachlinski
Juries: Arbiters Or Arbitrary?, Jeffrey J. Rachlinski
Jeffrey J. Rachlinski
No abstract provided.
Contrition In The Courtroom: Do Apologies Affect Adjudication?, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich
Contrition In The Courtroom: Do Apologies Affect Adjudication?, Jeffrey J. Rachlinski, Chris Guthrie, Andrew J. Wistrich
Jeffrey J. Rachlinski
Apologies usually help to repair social relationships and appease aggrieved parties. Previous research has demonstrated that in legal settings, apologies influence how litigants and juries evaluate both civil and criminal defendants. Judges, however, routinely encounter apologies offered for instrumental reasons, such as to reduce a civil damage award or fine, or to shorten a criminal sentence. Frequent exposure to insincere apologies might make judges suspicious of or impervious to apologies. In a series of experimental studies with judges as research participants, we find that in some criminal settings, apologies can induce judges to be more lenient, but overall, apologizing to …
Convicting Lennie: Mental Retardation, Wrongful Convictions, And The Right To A Fair Trial, John H. Blume, Sheri Lynn Johnson, Susan E. Millor
Convicting Lennie: Mental Retardation, Wrongful Convictions, And The Right To A Fair Trial, John H. Blume, Sheri Lynn Johnson, Susan E. Millor
Sheri Lynn Johnson
"Lennie" refers to Lennie Small, the intellectually disabled character in John Steinbeck's famous novella Of Mice and Men, which tells the story of two Depression-era wandering farmhands, George and Lennie, who dream of getting their own stake and living "off the fat of the land." Their dream dies hard when Lennie accidently kills the young, beautiful, and flirtatious wife of a ranch owner's son and then tries to cover it up because he realizes that he has "done a bad thing." George, in turn, kills Lennie to prevent him from being lynched or tried for murder. Lennie was doomed because …
Integrating Transnational Perspectives Into Civil Procedure: What Not To Teach, Kevin M. Clermont
Integrating Transnational Perspectives Into Civil Procedure: What Not To Teach, Kevin M. Clermont
Kevin M. Clermont
No abstract provided.
Anti-Plaintiff Bias In The Federal Appellate Courts, Kevin M. Clermont, Theodore Eisenberg
Anti-Plaintiff Bias In The Federal Appellate Courts, Kevin M. Clermont, Theodore Eisenberg
Kevin M. Clermont
A recent study of appellate outcomes reveals that defendants succeed significantly more often than plaintiffs on appeal from civil trials-especially from jury trials.
A Comparative View Of Standards Of Proof, Kevin M. Clermont, Emily Sherwin
A Comparative View Of Standards Of Proof, Kevin M. Clermont, Emily Sherwin
Kevin M. Clermont
In common-law systems, the standard of proof for ordinary civil cases requires the party who bears the burden of proof to establish by a preponderance of the evidence that the facts alleged are true. In contrast, the prevailing standard of proof for civil cases in civil-law systems is indistinguishable from the standard for criminal cases: the judge must be firmly convinced that the facts alleged are true. This striking difference in common-law and civil-law procedures has received very little attention from either civilian or comparative scholars. The preponderance standard applied in common-law systems is openly probabilistic and produces, on average, …
Plaintiphobia In The Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments, Kevin M. Clermont, Theodore Eisenberg
Plaintiphobia In The Appellate Courts: Civil Rights Really Do Differ From Negotiable Instruments, Kevin M. Clermont, Theodore Eisenberg
Kevin M. Clermont
Professors Clermont and Eisenberg conducted a systematic analysis of appellate court behavior and report that defendants have a substantial advantage over plaintiffs on appeal. Their analysis attempted to control for different variables that may affect the decision to appeal or the appellate outcome, including case complexity, case type, amount in controversy, and whether there had been a judge or a jury trial. Once they accounted for these variables and explored and discarded various alternate explanations, they came to the conclusion that a defendants' advantage exists probably because of appellate judges' misperceptions that trial level adjudicators are pro-plaintiff.
Surveying Work Product, Kevin M. Clermont
Surveying Work Product, Kevin M. Clermont
Kevin M. Clermont
Work product is the legal doctrine that central casting would send over. First, it boasts profundities, arising as it does from the colliding thrusts of our discovery and trial processes and from conflicting currents in our modified adversary system. Second, it will surface frequently, because the protected materials are commonly created by each side but uncommonly useful to the opponent. Third, it has generated a small mountain of lower-court case law, with the foothills forming a labyrinth of rules and wrinkles. In short, work product has for a couple of generations dramatically bewitched academics, bothered practitioners, and bewildered students. Significant …
Appeal From Jury Or Judge Trial: Defendants' Advantage, Kevin M. Clermont, Theodore Eisenberg
Appeal From Jury Or Judge Trial: Defendants' Advantage, Kevin M. Clermont, Theodore Eisenberg
Kevin M. Clermont
The prevailing "expert" opinion is that jury verdicts are largely immune to appellate revision. Using a database that combines all federal civil trials and appeals decided since 1988, we find that jury trials, as a group, are in fact not so special on appeal. But the data do show that defendants succeed more than plaintiffs on appeal from civil trials, and especially from jury trials. Defendants appealing their losses after trial by jury obtain reversals at a 31% rate, while losing plaintiffs succeed in only 13% of their appeals from jury trials. Both descriptive analyses of the results and more …
Do Case Outcomes Really Reveal Anything About The Legal System? Win Rates And Removal Jurisdiction, Kevin M. Clermont, Theodore Eisenberg
Do Case Outcomes Really Reveal Anything About The Legal System? Win Rates And Removal Jurisdiction, Kevin M. Clermont, Theodore Eisenberg
Kevin M. Clermont
General Observations on Interpreting Win-Rate Data Properly. Many empirical legal studies use data on plaintiffs' rate of success, because of those data's ready availability and apparent import. Yet these "win rates" are probably the slipperiest of all judicial data. Win rates are inherently ambiguous because of the case-selection effect. The litigants' selection of the cases brought produces a biased sample from the mass of underlying disputes. The settlement process, usually conducted by rational and knowledgeable persons who take into account and thereby neutralize the very factor that one would like to study, produces a residue of litigated cases for which …
Xenophilia In American Courts, Kevin M. Clermont, Theodore Eisenberg
Xenophilia In American Courts, Kevin M. Clermont, Theodore Eisenberg
Kevin M. Clermont
Foreigner! The word says it all. Verging on the politically incorrect, the expression is full of connotation and implication. A foreigner will face bias. By such a thought process, many people believe that litigants have much to fear in courts foreign to them. In particular, non-Americans fare badly in American courts. Foreigners believe this. Even Americans believe this. Such views about American courts are understandable. After all, the grant of alienage jurisdiction to the federal courts, both original and removal, constitutes an official assumption that xenophobic bias is present in state courts. As James Madison said of state courts: “We …
Sequencing The Issues For Judicial Decisionmaking: Limitations From Jurisdictional Primacy And Intrasuit Preclusion, Kevin M. Clermont
Sequencing The Issues For Judicial Decisionmaking: Limitations From Jurisdictional Primacy And Intrasuit Preclusion, Kevin M. Clermont
Kevin M. Clermont
This Article treats the order of decision on multiple issues in a single case. That order can be very important, with a lot at stake for the court, society, and parties. Generally speaking, although the parties can control which issues they put before a judge, the judge gets to choose the decisional sequence in light of those various interests. The law sees fit to put few limits on the judge’s power to sequence. The few limits are, in fact, quite narrow in application, and even narrower if properly understood. The Steel Co.-Ruhrgas rule generally requires a federal court to decide …
Civil Procedure’S Five Big Ideas, Kevin M. Clermont
Civil Procedure’S Five Big Ideas, Kevin M. Clermont
Kevin M. Clermont
Civil procedure, more than any other of the basic law-school courses, conveys to students an understanding of the whole legal system. I propose that this purpose should become more openly the organizing theme of the course. The focus should remain, of course, on the mechanics of the judicial branch. What I am championing is giving some conscious attention, albeit mainly in the background and at an introductory level, to the big ideas of the constitutional structure within which the law formulates civil procedure. Such attention would unify the doctrinal study, while enriching it for the students and revealing its true …
Inventing Tests, Destabilizing Systems, Kevin M. Clermont, Stephen C. Yeazell
Inventing Tests, Destabilizing Systems, Kevin M. Clermont, Stephen C. Yeazell
Kevin M. Clermont
The U.S. Supreme Court revolutionized the law on pleading by its suggestive Bell Atlantic Corp. v. Twombly and definitive Ashcroft v. Iqbal. But these decisions did more than redefine the pleading rules: by inventing a foggy test for the threshold stage of every lawsuit, they have destabilized the entire system of civil litigation. This destabilization should rekindle a wide conversation about fundamental choices made in designing our legal system. Those choices are debatable. Thus, the bone this Article picks with the Court is not that it took the wrong path for pleading, but that it blazed a new and unclear …
Exorcising The Evil Of Forum-Shopping, Kevin Clermont, Theodore Eisenberg
Exorcising The Evil Of Forum-Shopping, Kevin Clermont, Theodore Eisenberg
Kevin M. Clermont
Most of the business of litigation comprises pretrial disputes. A common and important dispute is over where adjudication should take place. Civil litigators deal with nearly as many change-of-venue motions as trials. The battle over venue often constitutes the critical issue in a case. The American way is to provide plaintiffs with a wide choice of venues for suit. But the American way has its drawbacks. To counter these drawbacks, an integral part of our court systems, and in particular the federal court system, is the scheme of transfer of venue "in the interest of justice." However, the leading evaluative …
The Repressible Myth Of Shady Grove, Kevin M. Clermont
The Repressible Myth Of Shady Grove, Kevin M. Clermont
Kevin M. Clermont
This Article untangles the effects of the Supreme Court's latest word on the Erie doctrine, by taking the vantage point of a lower court trying to uncover the logical implications of the Court's new pronouncement. First, Shady Grove lightly confirms the limited role of constitutional constraints. Second, it sheds only a little light on judicial choice-of-law methodology. Third, by contrast, it does considerably clarify the conflict between Federal Rules and state law: if a Rule regulates procedure, then it is valid and applicable without exception in all federal cases, to the extent of its coverage; in determining the Rule's coverage, …
Reverse-Erie, Kevin M. Clermont
Reverse-Erie, Kevin M. Clermont
Kevin M. Clermont
Traditional Erie is like a false front on a movie set, with nobody seeing the unfinished rear side. That other side depicts the extent of federal law applicable in state courts, which is determined under a doctrine called reverse-Erie. While everyone has an Erie theory and stands ready to debate it, almost no one has a theory of reverse-Erie, and no one at all has developed a clear choice-of-law methodology for it. Reverse-Erie, often misunderstood, mischaracterized, and misapplied by judges and commentators, goes strangely ignored by most scholars. And it goes ignored even though it holds a key to understanding …
Judge Harry Edwards: A Case In Point!, Kevin M. Clermont, Theodore Eisenberg
Judge Harry Edwards: A Case In Point!, Kevin M. Clermont, Theodore Eisenberg
Kevin M. Clermont
Judge Harry Edwards dislikes empirical work that is not flattering to federal appellate judges. A few years ago Dean Richard Revesz published an empirical study of the United States Court of Appeals for the D.C. Circuit providing further support for the rather tame proposition that judges’ political orientation has some effect on outcome in some politically charged cases. A year later Judge Edwards published a criticism phrased in extreme terms. Dean Revesz then wrote a devastating reply by which he demonstrated that Judge Edwards “is simply wrong with respect to each of the numerous criticisms that he levels.” We believe …
Improving On The Contingent Fee, Kevin M. Clermont, John D. Currivan
Improving On The Contingent Fee, Kevin M. Clermont, John D. Currivan
Kevin M. Clermont
Two basic fees--contingent and hourly--dominate the variety of fees that lawyers charge clients for pursuing damage claims. Each of these two types has its advantages; each is plagued with substantial disadvantages. This Article proposes a new type of fee, one that preserves the respective advantages of the two present fees while minimizing their distinct disadvantages. In essence, the proposed fee calls for the payment, on a contingent basis, of an amount computed by adding one component tied to hours worked and another component linked to amount recovered. The preferability and feasibility of this proposed fee argue for the abolishment, or …
Simplifying The Choice Of Forum: A Reply, Kevin M. Clermont, Theodore Eisenberg
Simplifying The Choice Of Forum: A Reply, Kevin M. Clermont, Theodore Eisenberg
Kevin M. Clermont
We have three things to think about here, as the real estate agents say—“location, location, location.” Accordingly, the two of us have engaged for several years in empirical studies aimed at gauging the effect of forum on case outcome. The results to date strongly suggest that forum really matters. An early piece of the puzzle fell into place in our study of venue. In that article, we examined the benefits and costs of the federal courts scheme of transfer of civil venue “in the interest of justice.” Ours was a pretty straightforward and simple cost-benefit analysis, but we supported it …