Global Civil Procedure Trends In The Twenty-First Century, 2011 University of California Hastings College of Law
Global Civil Procedure Trends In The Twenty-First Century, Scott Dodson
Faculty Publications
Recent scholarship in comparative civil procedure has identified
“American exceptionalism” as a way to describe practices which set the
United States apart from most of the world, particularly the civil law world.
This Article focuses on two areas of “exceptionalism”: pleading standards
and the role of judges. Specifically, pleading requirements are considerably
less strict in the United States compared to other countries. Additionally,
U.S. judges are less active in conducting litigation than their counterparts
elsewhere, especially judges in the civil law tradition. This Article traces
some modern trends toward convergence between the United States and
the rest of the world. …
The Absence Of Legal Ethics In The Ali's Principles Of Aggregate Litigation: A Missed Opportunity - And More, 2011 Boston Univeristy School of Law
The Absence Of Legal Ethics In The Ali's Principles Of Aggregate Litigation: A Missed Opportunity - And More, Nancy J. Moore
Faculty Scholarship
There is little discussion of legal ethics in the American Law Institute’s recently adopted Principles of Aggregate Litigation, either in the black-letter rules or the comments. The primary exception is that the Principles devote several sections to the so-called aggregate settlement rule (Rule 1.8(g) of the ABA Model Rules of Professional Conduct), although the purpose of these sections appears to be a proposed modification of that rule to permit claimants to agree in advance to be bound by majority approval of a particular settlement. The purpose of this essay is not to discuss the controversial aggregate settlement proposal (which the …
The Two-Trillion Dollar Carve-Out: Foreign Manufacturers Of Defective Goods And The Death Of H.R. 4678 In The 111th Congress, 2011 American University Washington College of Law
The Two-Trillion Dollar Carve-Out: Foreign Manufacturers Of Defective Goods And The Death Of H.R. 4678 In The 111th Congress, Andrew F. Popper
Articles in Law Reviews & Other Academic Journals
Whatever happened to H.R. 4678, The Foreign Manufacturers Legal Accountability Act? While at first the bill looked like it would sail through, vocal and well-funded opposition from foreign manufacturers and their U.S. representatives placed its future in doubt – and ultimately killed the bill. Gross sales of foreign manufactured goods in the U.S. exceed two trillion dollars annually. Conservatively, there are tens of millions of defective, dangerous, and in some instances deadly goods produced abroad for sale in U.S. markets (e.g., Chinese dry-wall, toxic levels of lead paint on toys, contaminated pet food, allegedly lurching cars, infant cribs that to …
Civilizing American Civil Justice: International Insights, 2011 University of Baltimore School of Law
Civilizing American Civil Justice: International Insights, James Maxeiner, Gyooho Lee, Armin Weber
All Faculty Scholarship
In 1776, when Americans declared independence from Britain, they also declared their rights. Their declarations of rights count “open courts” as among the best means for constitutional development. Open courts should secure to every man, without regard to wealth, a just remedy for every wrong suffered, according to the law of the land, by fair and speedy procedure.
Since 1776 Americans have invested heavily in creating open courts. They have been disappointed by returns that fall “far short of perfection” (Maurice Rosenberg). They have found reform to be an “unending effort to perfect the imperfect” (Jay Tidmarsh).
That Americans have …
Rule 15(C) Mistake: The Supreme Court In Krupski Seeks To Resolve A Judicial Thicket, 2011 Western New England University School of Law
Rule 15(C) Mistake: The Supreme Court In Krupski Seeks To Resolve A Judicial Thicket, Robert A. Lusardi
Faculty Scholarship
While recognizing the importance of a statute of limitations, Federal Rule of Civil Procedure 15 acts as a counterbalance to such statutes by allowing a plaintiff to freely amend a complaint to assert additional claims, or to name new or additional parties, and have those amendments relate back to a complaint filed within the statute of limitations even though that statute has run.
There have been interpretive problems, particularly with the language of Rule 15 (c)(1)(C)(ii). These problems arise when the "amendment changes the party or the naming of the party" after the statutory period and the conditions of Rule …
The American "Rule": Assuring The Lion His Share, 2011 University of Baltimore School of Law
The American "Rule": Assuring The Lion His Share, James Maxeiner
All Faculty Scholarship
Court costs in American civil procedure are allocated to the loser (“loser pays”) as elsewhere in the world. When American civil procedure took shape in the 1840s, American lawyers thought that losing parties ought to indemnify winning parties against all expenses of lawsuits. Yet today, attorneys’ fees – the lion’s share of expenses in the words of the General Report – are not allocated this way. By practice – and not by legal rule – attorneys’ fees fall on the parties that incur them. Those fees are not set by statute or court decision, but by agreement between parties and …
Survey Of Illinois Law: At Long Last, A Long Look At Respondents In Discovery, 35 S. Ill. U. L.J. 703 (2011), 2011 The John Marshall Law School
Survey Of Illinois Law: At Long Last, A Long Look At Respondents In Discovery, 35 S. Ill. U. L.J. 703 (2011), Marc Ginsberg
UIC Law Open Access Faculty Scholarship
No abstract provided.
The Deep Seabed: The Laws Of Nature And Nature’S Manganese Nodules, 2011 Liberty University
The Deep Seabed: The Laws Of Nature And Nature’S Manganese Nodules, Jeffrey C. Tuomala
Faculty Publications and Presentations
No abstract provided.
E-Discovery's Threat To Civil Litigation: Reevaluating Rule 26 For The Digital Age, 2011 University of Denver
E-Discovery's Threat To Civil Litigation: Reevaluating Rule 26 For The Digital Age, Robert M. Hardaway, Dustin D. Berger, Andrea Defield
Sturm College of Law: Faculty Scholarship
The Federal Rules of Civil Procedure, even though they were amended in 2006 specifically to address the costs and scale of ediscovery, not only fail to contain the cost or scope of discovery, but, in fact, encourage expensive litigation ancillary to the merits of civil litigants' cases. This Article proposes that the solution to this dilemma is to eliminate the presumption that the producing party should pay for the cost of discovery. This rule should be abandoned in favor of a rule that would equally distribute the costs of discovery between the requesting and producing parties.
'Til Death Do Us Part: Why Personal Jurisdiction Is Required To Issue Victim Protection Orders Against Nonresident Abusers, 2011 University of Oklahoma College of Law
'Til Death Do Us Part: Why Personal Jurisdiction Is Required To Issue Victim Protection Orders Against Nonresident Abusers, Bevan J. Graybill
Oklahoma Law Review
No abstract provided.
Two Views Of Class Action, 2011 University of Connecticut School of Law
Two Views Of Class Action, Alexandra Lahav
Faculty Articles and Papers
No abstract provided.
Reassessing The Avoidance Canon In Erie Cases, 2011 University of Akron School of Law
Reassessing The Avoidance Canon In Erie Cases, Bernadette Bollas Genetin
Akron Law Faculty Publications
This Article advocates that the Supreme Court recalibrate the avoidance canon used in Erie cases in which Federal Rules are in potential conflict with state law. The Article examines the Court’s historical use of avoidance in Erie cases, observing that contemporary jurists inappropriately conflate the purposes of pre- and post-Hanna avoidance when they conclude that avoidance in both periods protected state interests. Avoidance in the post-Hanna period has been premised on protecting important state interests and regulatory policies, but pre-Hanna avoidance attempted, with mixed success, to protect the Federal Rules. The Article also reveals that the Court’s post-Hanna federalism focus …
Making Sense Of Twombly, 2011 St. John's University School of Law
Making Sense Of Twombly, Edward D. Cavanagh
Faculty Publications
(Excerpt)
In May 2007, the United States Supreme Court decided Bell Atlantic Corp. v. Twombly and sent shockwaves throughout the federal civil justice system. Reversing the Second Circuit, the Court held that an antitrust complaint that alleged mere parallel behavior among rival telecommunications companies, coupled with stray averments of agreement that amounted merely to legal conclusions, failed as a matter of law to state a claim for conspiracy in violation of § 1 of the Sherman Act and had been properly dismissed by the trial court. The Court then proceeded to (1) redefine the concept of notice pleading by "retiring" …
Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice, 2011 University of Missouri School of Law
Jurisdictional Discovery In Transnational Litigation: Extraterritorial Effects Of United States Federal Practice, S. I. Strong
Faculty Publications
This article describes the device in detail, distinguishing it both practically and theoretically from methods used in other common law systems to establish jurisdiction, and discusses how recent US Supreme Court precedent provides international actors with the means of limiting or avoiding this potentially burdensome procedure.
When Can Attorneys' Fees Be Recovered In An Award Enforcement Action, 2011 SelectedWorks
When Can Attorneys' Fees Be Recovered In An Award Enforcement Action, M. Anderson Berry, Katherine S. Ritchey, Nandini Iyer
M. Anderson Berry
Because parties do not always comply with arbitration awards, it may be necessary for the prevailing party to seek enforcement of the award in a court of law—typically in a jurisdiction where the losing party has sufficient assets. This article focuses on whether the prevailing party can recover attorneys’ fees accrued during the enforcement procedure in U.S. district court under the Federal Arbitration Act (FAA).
Admissibility Of Electronic Documents, 2011 California Superior Court (San Francisco)
Admissibility Of Electronic Documents, Curtis E.A. Karnow
Curtis E.A. Karnow
A comprehensive inventory of issues involved in the introduction of electronic evidence, including practical alerts
Timing Settlement, 2011 California Superior Court (San Francisco)
Timing Settlement, Curtis E.A. Karnow
Curtis E.A. Karnow
A review of empirical and theoretical research pertaining to the effective timing of settlement conferences, and the factors affecting success at settlement.
Statistics In Law: Bad Inferences & Uncommon Sense, 2011 California Superior Court (San Francisco)
Statistics In Law: Bad Inferences & Uncommon Sense, Curtis E.A. Karnow
Curtis E.A. Karnow
A review of classic fallacies in statistics and probability in the courts. The article briefly, and in plain English, provides an introduction to probability theory, and randomness.
Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, 2011 Indiana University - Bloomington
Beyond Common Sense: A Social Psychological Study Of Iqbal's Effect On Claims Of Race Discrimination, Victor D. Quintanilla
Victor D. Quintanilla
This article examines the U.S. Supreme Court’s decision Ashcroft v. Iqbal, 129 S. Ct. 1937 (2009) from a social psychological perspective, and empirically studies Iqbal’s effect on claims of race discrimination.
In Twombly and then Iqbal, the Court recast Rule 8 from a notice-based rule into a plausibility standard. Under Iqbal, federal judges must evaluate whether each complaint contains sufficient factual matter “to state a claim to relief that is plausible on its face.” When doing so, Iqbal requires judges to draw on their “judicial experience and common sense.” Courts apply Iqbal at the pleading stage, before evidence has been …
From Wards Cove To Ricci: Struggling Against The “Built In Headwinds” Of A Skeptical Court, 2011 University of Colorado at Boulder
From Wards Cove To Ricci: Struggling Against The “Built In Headwinds” Of A Skeptical Court, Melissa R. Hart
Melissa R Hart
No abstract provided.