Civil Procedure Commons^™

The West Caribbean Conundrum: The United States Versus France On The Availability Of Forum Non Conveniens Under The Montreal Convention Of 1999, David Cluxton

Journal of Air Law and Commerce

No abstract provided.

Resolving The Circuit Split: Pleading Healthcare Fraud With Particularity, Tricia L. Forte

Roger Williams University Law Review

No abstract provided.

In Re Joziah B., 207 A.3d 451 (R.I. 2019), Devon Q. Toro

Roger Williams University Law Review

No abstract provided.

Distance Legal Education: Lessons From The *Virtual* Classroom, Jacqueline D. Lipton

Articles

Abstract

In the 2018-2019 revision of the American Bar Association (ABA) Standards and Rules of Procedure for Approval of Law Schools, the ABA further relaxed the requirements relating to distance education in J.D. programs. However, outside of a handful of schools that have received permission to teach J.D. courses almost entirely online, most experiments in distance legal education have occurred in post-graduate (i.e. post-J.D.) programs: LL.M. degrees, and various graduate certificates and Master’s degrees in law-related subjects. These programs can be taught completely online without requiring special ABA permission.

This essay reflects on the author’s experiences over a number of …

Comparative Method And International Litigation 2020, Ronald A. Brand

Articles

In this article, resulting from a presentation at the 2019 Annual Meeting of the American Society of Comparative Law, I apply comparative method to international litigation. I do so from the perspective of a U.S.-trained lawyer who has been involved for over 25 years in the negotiations that produced both the 2005 Hague Convention on Choice of Court Agreements and the 2019 Hague Convention on the Recognition and Enforcement of Judgments in Civil or Commercial Matters. The law of jurisdiction and judgments recognition is probably most often taught in a litigation context. Nonetheless, that law has as much or more …

Procedural Law, The Supreme Court, And The Erosion Of Private Rights Enforcement, Suzette M. Malveaux

Publications

No abstract provided.

Civil Procedure And Economic Inequality, Maureen Carroll

Articles

How well do procedural doctrines attend to present-day economic inequality? This Essay examines that question through the lens of three doctrinal areas: the “irreparable harm” prong of the preliminary injunction standard, the requirement that discovery must be proportional to the needs of the case, and the due process rights of class members in actions for injunctive relief. It concludes that in each of those areas, courts and commentators could do more to take economic inequality into account.

Between Scylla And Charybdis: Maritime Liens And The Bankruptcy Code, Ian T. Kitts

Brooklyn Journal of Corporate, Financial & Commercial Law

Federal courts have had trouble fitting maritime law into the bankruptcy scheme created by the Bankruptcy Code (the Code). Particularly troublesome have been vessel-arrest proceedings that are underway when the vessel’s owner files for bankruptcy. Prior to the enactment of the Code, courts applied the doctrine of custodia legis to decide whether the admiralty or the bankruptcy court would administer the vessel. Since the Code was enacted, courts have generally held that the bankruptcy court gained control. A recent Ninth Circuit decision, however, split with other circuits and seems to have revived custodia legis. This Note argues that the Ninth …

How Much Do Expert Opinions Matter? An Empirical Investigation Of Selection Bias, Adversarial Bias, And Judicial Deference In Chinese Medical, Chunyan Ding

Brooklyn Journal of International Law

This article investigates the nature of the operation and the role of expert opinions in Chinese medical negligence litigation, drawing on content analysis of 3,619 medical negligence cases and an in-depth survey of judges with experience of adjudicating medical negligence cases. It offers three major findings: first, that both parties to medical negligence disputes show significant selection bias of medical opinions, as do courts when selecting court-appointed experts; second, expert opinions in medical negligence litigation demonstrate substantial adversarial bias; third, courts display very strong judicial deference to expert opinions in determining medical negligence liability. This article fills the methodological gap …

A Proposal To Improve Washington's Rules On Ex Parte Contact, Connor Rowinski

Washington Law Review

Privilege doctrines play an important role in allowing clients to confide in their trusted attorneys and doctors. The intersection of two privilege doctrines in medical malpractice litigation—physician-patient privilege and attorney-client privilege—places physicians working at corporate hospitals in a catch-22 of allegiances. On one hand, physicians cannot disclose patient information, whereas on the other, they must assist their employer in defending the case. These concerns are heightened when attorneys seek to communicate with non-party physicians ex parte—that is, unsupervised. In Youngs v. Peacehealth, the Washington State Supreme Court allowed corporate defendants to communicate ex parte with the plaintiff’s treating physician under …

Snapback, Version 2.0: The Best Solution To The Problem Of Snap Removal, Arthur D. Hellman

Testimony

The forum defendant rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Pointing to the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) does not bar removal of a diversity action if a citizen of the forum state has been joined as a defendant but has not yet been served. The stratagem of removing before service to avoid the prohibition of § 1441(b)(2) …

Snapback! A Narrowly Tailored Legislative Solution To The Problem Of Snap Removal, Arthur D. Hellman

Testimony

“Snap removal” is a stratagem used by defendants in civil litigation as an end run around the forum defendant rule. That rule, embodied in 28 U.S.C. § 1441(b)(2), prohibits removal of civil actions based on diversity of citizenship jurisdiction “if any of the parties in interest properly joined and served as defendants is a citizen of the State in which such action is brought.” Focusing on the phrase “properly joined and served,” defendants have argued that § 1441(b)(2) allows removal of a diversity action when a citizen of the forum state has been joined as a defendant but has not …

Issue Classing--The Express Checkout Of Class Actions, Shaquille Grant

SMU Law Review Forum

No abstract provided.

Civil Practice And Procedure, Christopher S. Dadak

University of Richmond Law Review

This Article’s focus and analysis encompasses the past year of Supreme Court of Virginia opinions, legislation, and revisions to the Rules of the Supreme Court of Virginia affecting Virginia civil procedure.1 This Article is not meant to be all-encompassing, but does endeavor to capture the highlights of changes or analysis regarding Virginia civil procedure. The opinions discussed throughout this Article do not all reflect changes in Virginia jurisprudence on civil procedure, but also address clarifications or reminders from the court on certain issues it has deemed worthy of addressing (and that practitioners continue to raise). The Article first addresses opinions …

Knick V. Township Of Scott, Alizabeth A. Bronsdon

Public Land & Resources Law Review

The Supreme Court overruled a 34-year-old precedent and sparked a sharp dissent by holding that a landowner impacted by a local ordinance requiring public access to an unofficial cemetery on her property could bring a takings claim directly in federal court. The decision eliminated a Catch-22 state-litigation requirement that effectively barred local takings plaintiffs from federal court, but raised concerns about government land use and regulation, judicial federalism, and the role of stare decisis.

The Stealth Revolution In Personal Jurisdiction, Michael H. Hoffheimer

Florida Law Review

Since 2011 the Roberts Court has decided six personal jurisdiction cases that impose significant new constitutional restrictions on the power of courts and limit plaintiffs’ access to justice. But the Court’s opinions explaining those decisions have repeatedly denied that the Court is altering settled law. This Article argues that the Court is engaged in a stealth revolution, a process of radically changing existing law while claiming to follow controlling precedent. By claiming to rely on precedent, the Court avoids the need to offer a clear rule of decision, fails to explain the policies that motivate its changing approach to personal …

Why Settle For Less? Improving Settlement Conferences In Federal Court, William P. Lynch

Washington Law Review

Most cases settle before trial. Recent studies show that approximately 1% of cases filed in federal court go to trial. Alternative dispute resolution processes have been fully incorporated into federal court, and settlement conferences have long been used by federal court judges to control their dockets. Do they provide litigants with both substantive and procedural justice in the vast majority of cases that do not proceed to trial? Lawyers have raised concerns about judicial coercion to settle cases at settlement conferences, the loss of confidentiality that occurs when parties raise claims of bad faith participation at the conference, and that …

State, Bd. Of Architecture V. Dist. Ct., 135 Nev. Adv. Op. 49, Melissa Yeghiazarian

Nevada Supreme Court Summaries

The Court had two holdings in this case. First, a final decision for purposes of judicial review must contain a detailed finding of facts and conclusions of law by an administrative agency. Second, when a petition for judicial review is filed prematurely, it does not vest jurisdiction in the district court.

Out Of The Quandary: Personal Jurisdiction Over Absent Class Member Claims Explained, A. Benjamin Spencer

Faculty Publications

Since the Supreme Court's decision in Bristol-Myers Squibb Co. v. Superior Court of California, San Francisco County, litigants and lower courts have wrestled with the issue of whether a federal court must be able to exercise personal jurisdiction with respect to each of the claims asserted by absent class members in a class action and, if so, what standard governs that jurisdictional determination. This issue is rapidly coming to a head and is poised for inevitable resolution by the Supreme Court in the near future; multiple circuit courts have heard appeals from district courts that have reached varying conclusions on …

Marcus A. Reif V. Aries Consultants, Inc., 135 Nev. Adv. Op. 51 (Oct. 10, 2019), Joseph Adamiak

Nevada Supreme Court Summaries

The Court determined that, under NRS 11.258(1), a complaint is only void if it is served without a concurrent filing of attorney affidavit and export report.