Geoffrey C. Hazard, Jr.: Scholar, Law Reformer, Teacher, And Mentor, 2010 University of Pennsylvania Carey Law School
Geoffrey C. Hazard, Jr.: Scholar, Law Reformer, Teacher, And Mentor, Catherine T. Struve
All Faculty Scholarship
No abstract provided.
Foreword: Procedure As Palimpsest, 2010 University of Pennsylvania Carey Law School
Foreword: Procedure As Palimpsest, Catherine T. Struve
All Faculty Scholarship
No abstract provided.
Class Dismissed: Contemporary Judicial Hostility To Small-Claims Consumer Class Actions, 2010 Benjamin N. Cardozo School of Law
Class Dismissed: Contemporary Judicial Hostility To Small-Claims Consumer Class Actions, Myriam E. Gilles
Articles
I start from the view that small-value consumer claims are a primary reason that class actions exist, and that without class actions many - if not most - of the wrongs perpetrated upon small-claims consumers would not be capable of redress. It would then seem to follow that the class action device should be readily available in small-claims consumer cases. And yet, over the past decade, federal district courts have repeatedly declined to certify class actions on grounds that are specific to small-claims consumer cases. Foremost among those grounds is the notion that the federal class action rule carries within …
Quasi-Preemption: Nervous Breakdown In Our Constitutional System, 2010 University of Pennsylvania Carey Law School
Quasi-Preemption: Nervous Breakdown In Our Constitutional System, Geoffrey C. Hazard Jr.
All Faculty Scholarship
No abstract provided.
Sovereign Litigants: Native American Nations In Court, 2010 University of Pennsylvania Carey Law School
Sovereign Litigants: Native American Nations In Court, Catherine T. Struve
All Faculty Scholarship
No abstract provided.
Time And The Courts: What Deadlines And Their Treatment Tell Us About The Litigation System, 2010 University of Pennsylvania Carey Law School
Time And The Courts: What Deadlines And Their Treatment Tell Us About The Litigation System, Catherine T. Struve
All Faculty Scholarship
No abstract provided.
The Pleading Problem In Antitrust Cases And Beyond, 2010 University of Pennsylvania Carey Law School
The Pleading Problem In Antitrust Cases And Beyond, Herbert J. Hovenkamp
All Faculty Scholarship
In its Twombly decision the Supreme Court held that an antitrust complaint failed because its allegations did not include enough “factual matter” to justify proceeding to discovery. Two years later the Court extended this new pleading standard to federal complaints generally. Twombly’s broad language has led to a broad rewriting of federal pleading doctrine.
Naked market division conspiracies such as the one pled in Twombly must be kept secret because antitrust enforcers will prosecute them when they are detected. This inherent secrecy, which the Supreme Court did not discuss, has dire consequences for pleading if too much factual specificity …
Multidistrict Litigation: A Surprising Bonus For Pro Se Plaintiffs And A Possible Boon For Consumers, 2010 Washington University in St. Louis School of Law
Multidistrict Litigation: A Surprising Bonus For Pro Se Plaintiffs And A Possible Boon For Consumers, Danielle D'Onfro
Scholarship@WashULaw
Conventional wisdom says that pro se plaintiffs almost invariably fare worse than represented plaintiffs. However, there exists in federal court a procedural regime under which pro se plaintiffs effectively receive attorneys and therefore experience success rates similar to their represented peers: multidistrict litigation. Multidistrict litigation is a procedure for consolidating multiple federal civil cases sharing common questions of fact into a single proceeding in one federal district court for coordinated pre-trial proceedings and discovery. This paper takes an empirical look at all federal civil cases terminating between 2006 and 2008 to determine what effect multidistrict litigation has on case outcome …
Tremors Of Things To Come: The Great Split Between Federal And State Pleading Standards, 2009 University of Oklahoma College of Law
Tremors Of Things To Come: The Great Split Between Federal And State Pleading Standards, Roger Michalski
Roger Michalski
No abstract provided.
Professional Responsibility, 2009 Washington and Lee University School of Law
Becoming An Immigration Lawyer, 2009 Widener Law
Becoming An Immigration Lawyer, Jill Family
Jill E. Family
Introduction To Law, Law Study, And The Lawyer's Role, 2009 Washington and Lee University School of Law
Introduction To Law, Law Study, And The Lawyer's Role, James Moliterno, Fredric Lederer
James E. Moliterno
No abstract provided.
Hearings, 2009 Northwestern University
Hearings, Mark Spottswood
Mark Spottswood
This article explores a constantly recurring procedural question: When is fact-finding improved by a live hearing, and when would it be better to rely on a written record? Unfortunately, when judges, lawyers, and rulemakers consider this issue, they are led astray by the widely shared—but false—assumption that a judge can best determine issues of credibility by viewing the demeanor of witnesses while they are testifying. In fact, a large body of scientific evidence indicates that judges are more likely to be deceived by lying or mistaken witnesses when observing their testimony in person than if the judges were to review …
Rough Justice, 2009 Fordham Law School
Rough Justice, Alexandra Lahav
Alexandra D. Lahav
This Essay offers a new justification for rough justice. Rough justice, as I use the term here, is the attempt to resolve large numbers of cases by using statistical methods to give plaintiffs a justifiable amount of recovery. It replaces the trial, which most consider the ideal process for assigning value to cases. Ordinarily rough justice is justified on utilitarian grounds. But rough justice is not only efficient, it is also fair. In fact, even though individual litigation is often held out as the sine qua non of process, rough justice does a better job at obtaining fair results for …
Law In The Shadow Of Bargaining: The Feedback Effect Of Civil Settlements, 2009 University of California, Hastings College of the Law
Law In The Shadow Of Bargaining: The Feedback Effect Of Civil Settlements, Ben Depoorter
Ben Depoorter
Lawmakers, courts, and legal scholars often express concern that settlement agreements withhold important information from the public. This Essay identifies, to the contrary, problematic issues involving the availability of information on non-representative settlements. The theoretical and empirical evidence presented in this Essay demonstrates that, despite the widespread use of nondisclosure agreements, information on settlements is distributed both inside and outside legal communities, reaching actors through various channels including the oral culture in legal communities, specialized reporters, professional interest organizations, and media coverage. Moreover, information on private settlement agreements circulates more widely if the agreed compensation in a given settlement exceeds …
It's All About The People: Creating A "Community Of Memory" In Civil Procedure Ii, Part One, 2009 Arizona Summit Law School
It's All About The People: Creating A "Community Of Memory" In Civil Procedure Ii, Part One, Jennifer E. Spreng
Jennifer E Spreng
In Fall 2008, a nascent classroom community emerged among my Civil Procedure students, teaching assistants and I. That term’s adventure eventually became the vital “past” for the fully formed community that would knit students of future classes together as one.
The genesis of this early classroom community was my ideal of “the good lawyer” as the small-firm or small-jurisdiction practitioner I had known as a seven-year solo practitioner in a town of 50,000 people. That ideal was a combination of “the rhythms of the law” that run throughout the specialties; a more respectful and less stratified model of professionalism, and …
Antitrust, Class Certification, And The Politics Of Procedure, 2009 University of San Francisco
Antitrust, Class Certification, And The Politics Of Procedure, Joshua P. Davis, Eric L. Cramer
Joshua P. Davis
This Article develops two arguments against a possible trend in federal appellate courts toward imposing a new, heightened standard for class certification in antitrust cases. Recent case law can be read to imply that trial judges may make findings of fact on the merits in deciding class certification, including about whether plaintiffs will be able to show with class-wide evidence that every class member was harmed by allegedly anticompetitive conduct. The first argument is that the potential new standard would require a showing at class certification on an issue—whether all class members were injured—that plaintiffs need not, and typically do …
Resolving Cases On The Merits, 2009 University of Notre Dame
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.
Solving “The Burklow Problem”: Federal Question Jurisdiction Of Tucker Act And Labor-Management Relations Act Cases After Textron Lycoming V. Uaw, 2009 Arizona Summit Law School
Solving “The Burklow Problem”: Federal Question Jurisdiction Of Tucker Act And Labor-Management Relations Act Cases After Textron Lycoming V. Uaw, Jennifer E. Spreng, Roberto J. Escobar
Jennifer E Spreng
No abstract provided.
O Controlo Jurisdicional Da Actividade Da Autoridade Da Concorrência, 2009 Universidade de Coimbra
O Controlo Jurisdicional Da Actividade Da Autoridade Da Concorrência, Victor J. Calvete
Victor J. Calvete
Actions - and omissions - of the Portuguese Competition Authority (AdC) are bound to be reviewed by the courts, if parties injured so decide. However, the legal framework that provides for that review is somehow complex - and the more so after Law n.º 52/2008, of August 28, changed the powers of the Commercial Courts. The ensuing analysis predates those changes (accounted for in the final version), and provides a comprehensive guide of the different paths to be followed in reaction to the actions/omissions of the AdC, as well as cautionary warnings on some of the traps along the way.