Civil Procedure Commons^™

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, 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, 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, Jennifer E. Spreng, Roberto J. Escobar

Jennifer E Spreng

No abstract provided.

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.

Procedural Adequacy, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

This short piece responds to Jay Tidmarsh’s article, Rethinking Adequacy of Representation, 87 Texas Law Review 1137 (2009). I explore Professor Tidmarsh’s proposed “do no harm” approach to adequate representation in class actions from a procedural legitimacy perspective. I begin by considering the assumption underlying his alternative, namely that in any given class action both attorneys and class representatives tend to act as self-interested homo economicus and we must therefore tailor the adequacy requirement to curb self-interest only in so far as it makes class members worse off than they would be with individual litigation. Adopting the “do no harm” …

Teoría De Las Medidas Autosatisfactivas. Una Aproximación Desde La Teoría General Del Proceso, José Balcázar Quiroz

José Balcázar Quiroz

No abstract provided.

Régimen De Prisión Preventiva En América Latina: La Pena Anticipada, La Lógica Cautelar Y La Contrarreforma / Pre-Trial Detention Regime In Latin America: The Pre-Trial Punishment, Flight Risk And The Counter Reform, Claudio Fuentes Maureira

Claudio Fuentes Maureira

One of the main reasons that justified the criminal procedure reform in Latin America was the possibility to overcome and changed different practices that were very problematic. One of these complex situations was the excessive use of pre-trial detention in the context of criminal investigations; in particular, the abuse of this institution had a dangerous outcome when it comes to the protection of the human rights of the detainees.

From the mid 90’s onwards, most of the Latin American countries started a reform of their criminal institutions and proceedings. A considerable portion of the legal framework was heavily modified in …

Evidentiary Issues In The New York City Housing Court, Gerald Lebovits

Hon. Gerald Lebovits

Veil-Piercing, Peter B. Oh

Peter B. Oh

From its inception veil-piercing has been a scourge on corporate law. Exactly when the veil of limited liability can and will be circumvented to reach into a shareholder’s own assets has befuddled courts, litigants, and scholars alike. And the doctrine has been bedeviled by empirical evidence of a chasm between the theory and practice of veil-piercing; notably, veil-piercing claims inexplicably seem to prevail more often in Contract than Tort, a finding that flouts the engrained distinction between voluntary and involuntary creditors. With a dataset of 2,908 cases from 1658 to 2006, this study presents the most comprehensive portrait of veil-piercing …