Tort Reform And Jury Instructions, 2015 University of Tulsa College of Law
Tort Reform And Jury Instructions, Charles W. Adams
Articles, Chapters in Books and Other Contributions to Scholarly Works
This article discusses two recent statutes and the efforts of the Oklahoma Committee on Uniform Jury Instructions (Civil OUJI Committee) to recommend uniform jury instructions based on these statutes to the Oklahoma Supreme Court. The first statute is Okla. Stat. Title 12, §577.4, which deals with an instruction to juries that awards for damages for personal injuries and wrongful death that are nontaxable. The second statute is Okla. Stat. Title 23, §61.2, which imposes a $350,000 cap on noneconomic losses for personal injuries.
Supplemental Standing For Severability, 2015 Northwestern Pritzker School of Law
Supplemental Standing For Severability, Erik R. Zimmerman
Northwestern University Law Review
The Supreme Court has recently insisted that plaintiffs must have standing for every claim that they raise. But this claim-specific approach to standing is at odds with established practice in several contexts, including rulings on the severability of statutes. Courts often permit plaintiffs to claim that statutory provisions should be invalidated pursuant to severability doctrine, without requiring that they have standing for those claims. This Article argues that existing practice for severability is a form of “supplemental standing.” Supplemental standing is analogous to supplemental jurisdiction. It allows a plaintiff with standing for one claim to raise related claims, even if …
Five Questions After Atlantic Marine, 2015 Duke Law School
Five Questions After Atlantic Marine, Stephen E. Sachs
Faculty Scholarship
The Supreme Court’s Atlantic Marine ruling did a lot to clear up the law of forum selection. But it also left a number of live questions in place. This essay briefly discusses five of them. When a party wants to move a case to the selected forum, what procedures can it use, other than venue transfer or forum non conveniens? When is a forum selection clause valid and enforceable, as a matter of state or federal law? If the clause isn’t valid, should a federal court still give it any weight? What if there are multiple parties or claims, and …
Post-Kiobel Procedure: Subject Matter Jurisdiction Or Prescriptive Jurisdiction?, 2015 Southern Methodist University, Dedman School of Law
Post-Kiobel Procedure: Subject Matter Jurisdiction Or Prescriptive Jurisdiction?, Anthony J. Colangelo, Christopher R. Knight
Faculty Journal Articles and Book Chapters
This essay evaluates whether Alien Tort Statute (ATS) cases involving foreign elements raise questions of prescriptive jurisdiction or subject matter jurisdiction after the Supreme Court’s decision in Kiobel v. Royal Dutch Petroleum. It concludes that the lower court trend treats Kiobel as going to subject matter jurisdiction, and that this trend is probably correct. It would have been helpful for the Supreme Court to clearly provide guidance on this question — which has major doctrinal and procedural consequences for the law and litigants. The procedural implications of viewing challenges based on Kiobel as going to judicial subject matter jurisdiction are …
A Survey Of Illinois Code Of Civil Procedure Section 2-619(A), 48 J. Marshall L. Rev. 1009 (2015), 2015 UIC School of Law
A Survey Of Illinois Code Of Civil Procedure Section 2-619(A), 48 J. Marshall L. Rev. 1009 (2015), Wm. Dennis Huber
UIC Law Review
The paper examines the requirements of each section of Illinois Code of Civil Procedure Section 2-619(a) in greater depth by examining appellate and Illinois Supreme Court rulings in cases brought under each section of 2-619(a). It also analyzes the standards of review appellate courts apply under each section of 2-619(a). Finally, because 619(a) motions require affidavits in support of the motion, it is also necessary to consider the nature and sufficiency of affidavits
The Jury's Constitutional Judgment, 2015 University of Georgia
The Jury's Constitutional Judgment, Nathan Chapman
Scholarly Works
Despite the early American jury’s near-mythical role as a check on overreaching government agents, the contemporary jury’s role in constitutional adjudication remains opaque. Should the jury have the right to nullify criminal statutes on constitutional grounds? Should the jury apply constitutional doctrine in civil rights suits against government officers? Should courts of appeals defer to the jury’s application of constitutional law, or review it de novo?
This Article offers the first holistic analysis of the jury’s role in constitutional adjudication. It argues that the Constitution’s text, history, and structure strongly support the jury’s authority to apply constitutional law to the …
Halliburton Ii: A Loser's History, 2015 University of Michigan Law School
Halliburton Ii: A Loser's History, Adam C. Pritchard
Articles
The Supreme Court was presented with an opportunity to bring fundamental reform to securities class actions last term in Halliburton Co. v. Erica P John Fund, Inc.. The Court ducked that opportunity, passing the buck to Congress to undo the mess that the Court had created a quarter century prior in Basic Inc. v. Levinson. Congress's history in dealing with securities class actions suggests that reform is unlikely to come from the legislature anytime soon. The Securities and Exchange Commission appears to be satisfied with the status quo as well. With these institutional actors resisting reform, corporations and …
Atlantic Marine And The Future Of Forum Non Conveniens, 2015 Brooklyn Law School
Atlantic Marine And The Future Of Forum Non Conveniens, Robin Effron
Faculty Scholarship
No abstract provided.
Discoverymania: Plausibility Pleading As Misprescription, 2015 Touro Law Center
Discoverymania: Plausibility Pleading As Misprescription, Fabio Arcila Jr.
Scholarly Works
In replacing notice pleading with plausibility pleading, the Supreme Court chose to use a pleading solution to address a perceived discovery problem. This dissonance calls into question both the wisdom and legitimacy of the Court’s choice because plausibility pleading is too blunt an instrument to serve the Court’s goals: it is destabilizing because it ignores the interrelationship between discovery and other Federal Rules of Civil Procedure; it is unfairly overinclusive because it impacts all plaintiffs in all federal cases rather than only those in the minority of cases in which discovery is likely to be problematic; and it is unfairly …
Trial And Error: Lawyers And Nonlawyer Advocates, 2015 The University of Utah S.J. Quinney College of Law
Trial And Error: Lawyers And Nonlawyer Advocates, Anna E. Carpenter, Alyx Mark, Colleen F. Shanahan
Faculty Scholarship
Nonlawyer advocates are one proposed solution to the access to justice crisis and are currently permitted to practice in some civil justice settings. Theory and research suggest nonlawyers might be effective in some civil justice settings, yet we know very little, empirically, about nonlawyer practice in the United States. Using data from more than 5,000 unemployment insurance appeal hearings and interviews with lawyers and nonlawyers, this article explores how both types of representatives learn to do their work and what this means for their effectiveness. Building on recent research regarding the importance of procedural knowledge and relational expertise as elements …
Who Wins Residential Property Tax Appeals?, 2015 University of Missouri - Kansas City, School of Law
Who Wins Residential Property Tax Appeals?, Randall K. Johnson
Faculty Works
This article explains who wins residential property tax appeals in Cook County, Illinois. It does so by collecting and combining public sector data, which has been recently released by the Cook County Assessor. The article then uses this data to compute three statistics. Lastly, it contextualizes each statistic in order to determine if some townships, or groups of townships, win more appeals than expected.
Suppose The Class Began The Day The Case Walked In The Door . . ., 2014 Arizona Summit Law School
Suppose The Class Began The Day The Case Walked In The Door . . ., Jennifer Spreng
Jennifer E Spreng
Problem-solving is the manifestation of a lawyer’s expertise. Unfortunately, the first year of law school is too highly compartmentalized and often semi-rote-learning experience that does not disturb what are many students’ passive undergraduate school learning strategies. Once taught the same way in law school, students are unlikely to develop the more intellectually sophisticated, relational learning strategies to make the cross-topical and cross-disciplinary connections of which problem-solving expertise is made.
This article argues that horizontally and vertically integrated first-year courses with spiral designs that prioritize honing students’ analytical and problem-solving capacities can break this cycle and prepare students with more self-directed …
Due Process, Class Action Opt Outs, And The Right Not To Sue, 2014 Selected Works
Due Process, Class Action Opt Outs, And The Right Not To Sue, Ryan C. Williams
Ryan Williams
Transnational Class Actions In The Shadow Of Preclusion, 2014 Cornell University Law School
Transnational Class Actions In The Shadow Of Preclusion, Zachary D. Clopton
Zachary Clopton
The Law Of Unintended Consequences: Avoiding The Health Care Liability Act Booby Trap, 2014 Selected Works
The Law Of Unintended Consequences: Avoiding The Health Care Liability Act Booby Trap, Daniel A. Horwitz
Daniel A. Horwitz
Screening Out Unwanted Calls: The Manipulation Of Standing 'Doctrine', 2014 Boston College Law School
Screening Out Unwanted Calls: The Manipulation Of Standing 'Doctrine', Mark S. Brodin
Mark S. Brodin
Judging Multidistrict Litigation, 2014 University of Georgia School of Law
Judging Multidistrict Litigation, Elizabeth Chamblee Burch
Elizabeth Chamblee Burch
Atlantic Marine And The Future Of Party Preference, 2014 University of California Hastings College of Law
Atlantic Marine And The Future Of Party Preference, Scott Dodson
Scott Dodson
In Atlantic Marine, the U.S. Supreme Court held that a prelitigation forum-selection agreement does not make an otherwise proper venue improper. Prominent civil procedure scholars have questioned the wisdom and accuracy of this holding. This paper is derived from my presentation at the symposium on Atlantic Marine held at UC Hastings College of the Law on September 19, 2014. In this paper, I defend Atlantic Marine as essentially correct based on what I have elsewhere called the principle of party subordinance. I go further, however, to argue that the principle underlying Atlantic Marine could affect the widespread private market for …
Pleading And The Litigation Marketplace, 2014 University of California Hastings College of Law
Pleading And The Litigation Marketplace, Scott Dodson
Scott Dodson
In this essay derived from a lecture delivered at the University of Genoa in 2013, I situate the New Pleading regime of Twombly and Iqbal in the American litigation marketplace. Courts and parties are undoubtedly affected by New Pleading. But, as rational actors, they also are responsive to it. Their responsive behaviors both mitigate the expected effects of New Pleading and cause unintended effects. Assessing New Pleading requires understanding and consideration of these market forces and reactive implications.
Mandatory Process, 2014 Penn State Dickinson Law