Can The Dark Arts Of The Dismal Science Shed Light On The Empirical Reality Of Civil Procedure?, 2014 University of Pennsylvania Carey Law School
Can The Dark Arts Of The Dismal Science Shed Light On The Empirical Reality Of Civil Procedure?, Jonah B. Gelbach
All Faculty Scholarship
Litigation involves human beings, who are likely to be motivated to pursue their interests as they understand them. Empirical civil procedure researchers must take this fact seriously if we are to adequately characterize the effects of policy changes. To make this point concrete, I first step outside the realm of civil procedure and illustrate the importance of accounting for human agency in empirical research. I use the canonical problem of demand estimation in economics to show how what I call the “urn approach” to empirical work fails to uncover important empirical relationships by disregarding behavioral aspects of human action. I …
Citations To Foreign Courts -- Illegitimate And Superfluous, Or Unavoidable? Evidence From Europe, 2014 Fordham University School of Law
Citations To Foreign Courts -- Illegitimate And Superfluous, Or Unavoidable? Evidence From Europe, Martin Gelter, Mathias M. Siems
Faculty Scholarship
The theoretical arguments in favour and against citations to foreign courts have reached a high degree of sophistication. Yet, this debate is often based on merely anecdotal assumptions about the actual use of cross-citations. This article aims to fill this gap. It provides quantitative evidence from ten European supreme courts in order to assess the desirability of such cross-citations. In addition, it examines individual cases qualitatively, developing a taxonomy of cross-citations based on the degree to which courts engage with foreign law. Overall, this article high-lights the often superficial nature of cross-citations in the some courts; yet, it also concludes …
Discretion In Class Certification, 2014 University of Pennsylvania Carey Law School
Discretion In Class Certification, Tobias Barrington Wolff
All Faculty Scholarship
A district court has broad discretion in deciding whether a suit may be maintained as a class action. Variations on this phrase populate the class action jurisprudence of the federal courts. The power of the federal courts to exercise discretion when deciding whether to permit a suit to proceed as a class action has long been treated as an elemental component of a representative proceeding. It is therefore cause for surprise that there is no broad consensus regarding the nature and definition of this judicial discretion in the certification process. The federal courts have not coalesced around a clear or …
The Undue Hardship Thicket: On Access To Justice, Procedural Noncompliance, And Pollutive Litigation In Bankruptcy, 2014 Washington University in St. Louis School of Law
The Undue Hardship Thicket: On Access To Justice, Procedural Noncompliance, And Pollutive Litigation In Bankruptcy, Rafael I. Pardo
Scholarship@WashULaw
This Article offers new insights into understanding the complexities and costs of the litigation burden that Congress has imposed on debtors who seek a fresh start in bankruptcy. In order to explore the problems inherent in a system that necessitates litigation as the path for obtaining certain types of bankruptcy relief, this Article focuses on the particular example of debtors who seek to discharge their student loans in bankruptcy. Such debt may be discharged only if the debtor can establish through a full-blown lawsuit that repaying the loans would impose an undue hardship. The procedure and burdens of proof governing …
Prosecutors’ Disclosure Obligations In The U.S., 2014 Fordham University School of Law
Prosecutors’ Disclosure Obligations In The U.S., Bruce A. Green, Peter A. Joy
Faculty Scholarship
The article offers information on the prosecutor's discovery disclosure obligation in the U.S. Topics discussed include efforts of defense attorney in the prosecutor's disclosure obligation, efforts beyond the professional discipline, and legal enforcement to promote and support the approach of prosecutor's disclosure obligation, and collection of material used as evidence in the civil or criminal litigation.
Facilitative Judging: Organizational Design In Mass-Multidistrict Litigation, 2014 University of Georgia School of Law
Facilitative Judging: Organizational Design In Mass-Multidistrict Litigation, Jaime Dodge
Scholarly Works
Faced with the emerging phenomenon of complex litigation—from school desegregation to mass torts—the judiciary of the last century departed from the traditional, purely adjudicative role in favor of managerial judging, in which they actively supervised cases and even became involved in settlement talks. I argue that a similar transition in judicial role is now occurring. I contend that transferee judges are now stepping back from active participation in settlement discussions but playing a far greater role in structuring and administering the litigation. This new judicial role focuses on facilitating the parties’ resolution of the case, whether through settlement or remand …
Bridging The Justice Gap: Exploring Approaches For Improving Indigent Access To Civil Counsel, 2014 Pomona College
Bridging The Justice Gap: Exploring Approaches For Improving Indigent Access To Civil Counsel, Kelsey Atkinson
Pomona Senior Theses
The United States is among one of the only democratic industrialized nations in the world that does not provide guaranteed access to civil representation in cases involving basic human need. This leaves indigent litigants who are at risk of losing their homes or their children left to seek counsel through insufficient pro-bono programs or limited scope legal self-help centers. This thesis provides a history of the struggle for the right to civil counsel, known as Civil Gideon, and explores a variety of proposed solutions to bridge the justice gap for indigent litigants. Despite considerable support for Civil Gideon among scholars …
Discovery Of Medical Records In Oklahoma State Courts, 2014 University of Tulsa College of Law
Discovery Of Medical Records In Oklahoma State Courts, Charles W. Adams
Articles, Chapters in Books and Other Contributions to Scholarly Works
No abstract provided.
Roadblocks To Access To Justice: Reforming Ethical Rules To Meet The Special Needs Of Low-Income Clients, 2014 University of Pennsylvania Carey Law School
Roadblocks To Access To Justice: Reforming Ethical Rules To Meet The Special Needs Of Low-Income Clients, Louis S. Rulli
All Faculty Scholarship
The nation’s growing justice gap has left the poor with far too little access to legal representation, even in the most serious of civil matters. With poverty rates approaching their highest levels in the last fifty years, the poor struggle to hold on to their homes, their jobs, and their families, frequently overmatched by superior resources and an abundance of opposing lawyers representing corporations, government, and well-heeled interests. Non-profit lawyers struggle to provide limited assistance to the poor in high volume, community settings, or in courtroom corridors and on telephone hot lines. It is in these non-traditional settings that lawyers …
Multiple Attempts At Class Certification, 2014 University of Pennsylvania Carey Law School
Multiple Attempts At Class Certification, Tobias Barrington Wolff
All Faculty Scholarship
The phenomenon of multiple attempts at class certification -- when class counsel file the same putative class action in multiple successive courts and attempt to secure an order of certification despite previous denials of the same request -- has always presented a vexing analytical puzzle. When the Supreme Court rejected one proposed solution to that problem in Smith v. Bayer, it left unresolved some of the broader questions of preclusion doctrine, federal common law, and the constraints of due process with which any satisfying approach will have to grapple.
This essay was solicited as a reply to a recent …
Access To Counsel In Removal Proceedings: A Case Study For Exploring The Legal And Societal Imperative To Expand The Civil Right To Counsel, 2014 Southern Methodist University, Dedman School of Law
Access To Counsel In Removal Proceedings: A Case Study For Exploring The Legal And Societal Imperative To Expand The Civil Right To Counsel, Carla L. Reyes
Faculty Journal Articles and Book Chapters
Although empirical evidence shows that a foreign national's chances of receiving a favorable ruling doubles when an attorney represents him or her in removal proceedings, a unique confluence of history, legal tradition and policy climate have restricted immigrants' access to counsel to a ten-day window in which the immigrant may seek representation of his or her own choosing at no expense to the government. Although removal proceedings are, by definition, civil proceedings, they nevertheless involve physical detention and the possibility of permanent removal from the United States. These circumstances make the immigration system a unique case study for exploration of …
Whither Bespoke Procedure?, 2014 University of Pennsylvania Carey Law School
Whither Bespoke Procedure?, David A. Hoffman
All Faculty Scholarship
Increasingly we hear that civil procedure lurks in the shadow of private law. Scholars suggest that the civil rules are mere defaults, applying if the parties fail to contract around them. When judges confront terms modifying court procedures — a trend said to be explosive — they seem all-too-willing to surrender to the inevitable logic of private and efficient private ordering. * How concerned should we be? This Article casts a wide net to find examples of private contracts governing procedure, and finds a decided absence of evidence. I search a large database of agreements entered into by public firms, …
Class Actions And Justiciability, 2014 University of Miami School of Law
Class Actions And Justiciability, Sergio J. Campos
Articles
A lingering issue in class action law concerns the case or controversy requirement of Article III, otherwise known as the requirement of justiciability. For purposes of justiciability doctrines such as standing, mootness, and ripeness, is the class action brought by all class members, some class members, or just the class representative?
This Article argues that the answer should be none of the above-it should be the class attorney. This Article first shows that the function of the class action is to assign dispositive control of, and a partial beneficial interest in, the class members' claims to the class attorney. Put …
Use Of Eu Institutions Outside The Eu Legal Framework: Foundations, Procedure And Substance, 2014 Indiana University Maurer School of Law
Use Of Eu Institutions Outside The Eu Legal Framework: Foundations, Procedure And Substance, Paul Craig
Articles by Maurer Faculty
The decision in Case Pringle was primarily concerned with whether the European Stability Mechanism (TFEU) was compatible with various substantive provisions of the Treaty on the Functioning of the European Union, most notably the prohibition on bailouts in Article 125 TFEU. The judgment is nonetheless important for other reasons, including the legitimacy of the use of EU institutions outside the EU legal framework. It will be seen that the CJEU endorsed their use and reaffirmed earlier case law. These conclusions were analysed by Steve Peers in a helpful article in a previous issue of the European Constitutional Law Review, in …
Limits Of Procedural Choice Of Law, 2014 University of Missouri School of Law
Limits Of Procedural Choice Of Law, S. I. Strong
Faculty Publications
Commercial parties have long enjoyed significant autonomy in questions of substantive law. However, litigants do not have anywhere near the same amount of freedom to decide procedural matters. Instead, parties in litigation are generally considered to be subject to the procedural law of the forum court.
Although this particular conflict of laws rule has been in place for many years, a number of recent developments have challenged courts and commentators to consider whether and to what extent procedural rules should be considered mandatory in nature. If procedural rules are not mandatory but are instead merely “sticky” defaults, then it may …
Some Preliminary Observations On The Proposed Eli/Unidroit Civil Procedure Project In The Light Of The Experience Of The Ali/Unidroit Project, 2014 UC Hastings College of the Law
Some Preliminary Observations On The Proposed Eli/Unidroit Civil Procedure Project In The Light Of The Experience Of The Ali/Unidroit Project, Geoffrey C. Hazard Jr.
Faculty Scholarship
No abstract provided.
Resoling International Shoe, 2014 Elisabeth Haub School of Law at Pace University
Resoling International Shoe, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
Goodyear Dunlop Tire Operations, S.A. v. Brown and Daimler AG v. Bauman sharply restricted general jurisdiction over corporations, limiting it to a corporation’s (1) state of incorporation, (2) state of principal place of business, or (3) another state where the corporation is “essentially at home.” The Court analogized the first two categories to an individual’s domicile. The Court made clear that the third category is very small, leading Justice Sotomayor, in her opinion concurring in the judgment, to charge that the Court had made many corporations “too big for general jurisdiction.” It is noteworthy that although the Court used the …
The Professor And The Judge: Introducing First Year Students To The Law In Context, 2014 Elisabeth Haub School of Law at Pace University
The Professor And The Judge: Introducing First Year Students To The Law In Context, Michael B. Mushlin, Lisa Margaret Smith
Elisabeth Haub School of Law Faculty Publications
For the past five years the authors, one a law professor, and the other a federal judge, have joined forces to teach introductory civil procedure to first semester first year students. Our approach is contrary to the traditional theory of legal instruction which holds that students learn first by a rigid diet of Socratic teaching of the fundamentals of legal analysis without any exposure to the real world or even a simulation of it. The central idea behind our experiment is that at the beginning of law school it is essential to provide a contextual introduction to the work of …
Horton The Elephant Interprets The Federal Rules Of Civil Procedure: How The Federal Courts Sometimes Do And Always Should Understand Them, 2014 Elisabeth Haub School of Law at Pace University
Horton The Elephant Interprets The Federal Rules Of Civil Procedure: How The Federal Courts Sometimes Do And Always Should Understand Them, Donald L. Doernberg
Elisabeth Haub School of Law Faculty Publications
In Shady Grove, the Court considered whether a federal class action was maintainable in a diversity case where state law forbade class actions. The justices were sharply split into shifting majorities. One majority concluded that Rule 23 was not substantive for REA purposes and that it applied, but its members could not agree on why. Four justices thought it was proper to look only at the Federal Rule in question to see whether it addressed substance or procedure on its face. A different majority supported an approach to REA questions that required evaluating state law to determine whether the Federal …
Rethinking Summary Judgment Empirics: The Life Of The Parties, 2014 University of Pennsylvania Carey Law School
Rethinking Summary Judgment Empirics: The Life Of The Parties, Jonah B. Gelbach
All Faculty Scholarship
No abstract provided.