Law Commons^™

Efficiency At The Price Of Accuracy: The Case For Assigning Mdls To Multiple Districts And Circuits, Isaak Elkind

Vanderbilt Law Review

28 U.S.C. § 1407 allows for the centralization of unique cases into a single forum for pretrial purposes. The product is multidistrict litigation, known colloquially as the “MDL.” While initially conceived as a means of increasing efficiency for only particularly massive, complex litigation, MDLs have become pervasive. Today, over fifteen percent of all civil litigation—and fifty percent of all federal civil litigation—is consolidated into MDLs. Yet, MDLs are commonly overconsolidated, such that only one judge presides over hundreds, thousands, or even hundreds of thousands of individual cases at a time. Fewer than three percent of such cases return to their …

The Rise And Fall Of Premises Liability For Injuries Arising From Third-Party Criminal Activity In Mississippi, Mark J. Goldberg

Mississippi College Law Review

On July 1, 2019, the Landowners Protection Act (the “Act”) became effective in Mississippi. The Act modified existing law as to premises liability for failure to protect against the criminal acts of third-parties in two respects. First, a new Code section was enacted, granting property owners several protections from such claims. Second, Mississippi’s joint and several liability statute was amended to allow for apportionment of fault between premises owners and intentional tortfeasors, i.e., criminal actors.

In the debate leading to the Act’s passage, proponents of the legislation provided that it was intended to codify prior court rulings and ensure that …

Presuit Lawyer Information Duties Relevant To Civil Litigation, Jeffrey A. Parness

Marquette Law Review

In both federal and state courts in the United States, there are significant civil procedure, professional responsibility, and substantive laws addressing presuit lawyer duties on creating, preserving, producing, and protecting information relevant to later civil litigation. These laws speak to lawyer conduct both in personally handling information and in overseeing the information acts of others. To date, the challenges these laws pose to lawyers have not been well examined, or even largely perceived. And, to date, lawyers have been left unaccountable for their personal violations of these duties.

Preliminary Damages, Gideon Parchomovsky, Alex Stein

Vanderbilt Law Review

Historically, the law helped impecunious plaintiffs overcome their inherent disadvantage in civil litigation. Unfortunately, this is no longer the case: modern law has largely abandoned the mission of assisting the least well-off. In this Essay, we propose a new remedy that can dramatically improve the fortunes of poor plaintiffs and thereby change the errant path of the law: preliminary damages. The unavailability of preliminary damages has dire implications for poor plaintiffs, especially those wronged by affluent individuals and corporations. Resource-constrained plaintiffs cannot afford prolonged litigation on account of their limited financial means. Consequently, they are forced to either forego suing …

Litigating An Epidemic: California Plaintiffs In The National Opioid Litigation, Samantha T. Pannier

Loyola of Los Angeles Law Review

Can litigation solve a public health epidemic? The opioid epidemic has cost California 24,885 lives, $4.3 billion, and counting. As a result, over 500 California cities, counties, and sovereign Indian tribes are engaged in civil litigation against over twenty different opioid manufacturers, distributors, and pharmacies for their role in creating and profiting from an epidemic of addiction. Cases brought by California plaintiffs account for about 20 percent of all ongoing opioid litigation nationally. This Note situates the claims of three California plaintiffs— the State, the County of Mariposa, and the City of Los Angeles—within the context of the ongoing national …

On Individual Participation Within Mass Litigation: The Case Of The Fairness Hearing, Nourit Zimerman

Akron Law Review

What can we learn from including class members’ voices in the process of approving settled class actions? How does the opportunity provided to class members to participate in a public hearing relate to the inherent tension between individualism and the goals of aggregate litigation? Employing a unique methodology for analyzing court transcripts and using original data, this paper provides a renewed and rich depiction of the fairness hearing—a public hearing mandated by the Federal Rules of Civil Procedure—which is held before the court can approve a settlement in a class action. Situated both within socio-legal studies and mass litigation scholarship, …

Discovery Disclosure And Deterrence, Sergio J. Campos, Cheng Li

Vanderbilt Law Review

Courts, practitioners, and scholars have recently expressed concern over the ex post costs of discovery in civil litigation. In this Article, we develop a game theoretic model of litigant behavior to study an overlooked phenomenon-the ex ante effects of discovery on a defendant's incentive to engage in unlawful conduct. We focus on motions to seal, which limit the disclosure of discovered information to the public, but permit disclosure to the court and parties. Specifically, we examine the effect different rules regarding such motions have in deterring defendants from engaging in unlawful behavior. We show that as a rule becomes more …

Seeking Proportional Discovery: The Beginning Of The End Of Procedural Uniformity In Civil Rules, Linda S. Simard

Vanderbilt Law Review

After more than two decades of vigorous debate, the original Federal Rules of Civil Procedure became effective on September 16, 1938, and ushered in broad provisions for discovery. The need for discovery, however, was not a central theme of the debates that preceded the original codification. Rather, the proponents of the new rules asserted that the Conformity Act of 1872 created uncertainty regarding the procedure that would apply in federal court. This uncertainty caused unnecessary expense and delay, particularly for interstate corporations that felt compelled to retain specialized counsel in every state. Proponents asserted that adoption of trans-substantive rules of …

A Proposal To End Discovery Abuse, Alexandra D. Lahav

Vanderbilt Law Review

When commentators, lawyers, judges, politicians, business people-anyone really-are looking to heap abuse on part of the civil process, they complain about discovery. But in truth, civil discovery is treated cruelly and often misunderstood. This is the case for two reasons. First, we do not know much about what actually happens in civil discovery in different types of cases. As a result, people seem to fill in the gaps of knowledge with their priors, which are, in turn, dependent on a few examples that loom large in their imaginations. Whatever limited reliable evidence about discovery we do have-and it is indeed …

... Because "Yes" Actually Means "No": A Personalized Prescriptive To Reactualize Informed Consent In Dispute Resolution

Marquette Law Review

None.

Contemplating The Use Of Classified Or State Secret Information Obtained Ex Parte On The Merits In Civil Litigation: Bl(A)Ck Tea Society V. City Of Boston, Brian M. Tomney

Maine Law Review

In Bl(a)ck Tea Society v. City of Boston, the First Circuit Court of Appeals affirmed, without dissent, a district court's ruling denying protesters at the 2004 Democratic National Convention a preliminary injunction designed to force the City of Boston to modify its designated demonstration zone (DZ) and remove some of the draconian security measures surrounding the zone. The injunction was denied by Judge Woodlock after he personally inspected the DZ and determined that, given “constraints of time, geography, and safety,” there were no viable alternatives—to site location or construction of the DZ itself—that could reasonably occur before the convention started. …

Dance Like No One Is Watching, Post Like Everyone Is: The Accessibility Of "Private" Social Media Content In Civil Litigation, Nicole A. Keefe

Vanderbilt Journal of Entertainment & Technology Law

An increasing amount of information about an individual manifests in online activity, specifically through the use of the numerous social media platforms available today. Though these platforms offer users the ability to shield content behind various degrees of privacy options, even the most private information might be accessed in the course of robust legal proceedings. This Note analyzes the accessibility of private social media content in civil litigation through the vehicles of the Federal Rules of Civil Procedure, the Model Rules of Professional Conduct, and the Federal Rules of Evidence. The solution suggests methods for incorporating this new technological medium …

Electronic Discovery In Civil Litigation: Avoiding Surprises In Cost Shifting Decisions, Genevieve H. Harte

Seton Hall Circuit Review

No abstract provided.

New Rules Of War In The Battle Of The Experts: Amending The Expert Witness Disqualification Test For Conflicts Of Interest, Nina A. Vershuta

Brooklyn Law Review

In civil litigation, the big business of retaining experts has raised concerns about the integrity of the adversarial process and undermined the role that expert testimony plays at trial. Due to a rising demand for expert testimony, it is common for the same expert to testify for opposing clients. When a client hires an expert who has been previously retained by that client’s adversary, a conflict of interest arises. Such experts may share confidential information with their new client to the detriment of the former client—triggering the expert disqualification test for conflicts of interest. Most state and federal courts do …

Rule 408: Maintaining The Sheild For Negotiation In Federal And Bankruptcy Courts, Leslie T. Gladstone

Pepperdine Law Review

No abstract provided.

The Need For A National Civil Justice Survey Of Incidence And Claiming Behavior, Theodore Eisenberg

Fordham Urban Law Journal

Civil justice issues – family law issues such as divorce and child custody, consumer victimization issues raised by questionable trade practices, and tort issues raised by surprisingly high estimated rates of medical malpractice, questionable prescription drug practices, and other behaviors – are part of the fabric of daily life. Yet we lack systematic quantitative knowledge about the primary events in daily life that generate civil justice issues. This paper explores the desirability of, and issues related to, creating a national civil justice survey (NCJS) analogous to the National Crime Victimization Survey. The need for information about civil justice issues and …

Connecting Self-Representation To Civil Gideon: What Existing Data Reveal About When Counsel Is Most Needed, Russell Engler

Fordham Urban Law Journal

Over the past decade, the phenomenon of self-representation in civil cases has led to the development of programs designed to facilitate self-representation. A revitalized movement seeking to establish a civil right to counsel has emerged (civil Gideon, a civil right to counsel based on Gideon v. Wainwright), pressing for the expansion of the availability of counsel for the poor. What are the scenarios in which full representation by counsel is most needed? Part of this question involves policy choices as to the importance of what is at stake in the proceeding. Part of this question, however, is a research question: …

Lawyering In Juvenile Court: Lessons From A Civil Gideon Experiment, Katherine Hunt Federle

Fordham Urban Law Journal

To understand how a good lawyering paradigm may nevertheless undermine client empowerment and perpetuate disability, it is necessary to appreciate the larger ethical debate about client autonomy. This Article will examine two dominant models of good lawyering and explore their implications for client choice and lawyer autonomy, with an emphasis on poverty lawyering. The Article then turns to a discussion of the lawyering experience in juvenile court to illustrate the ways in which dominant visions of the client as dependent, incompetent, and disabled affect not only the role and responsibilities of the attorney for the child but the extension of …

Higher Demand, Lower Supply? A Comparative Assessment Of The Legal Resource Landscape For Ordinary Americans, Gillian K. Hadfield

Fordham Urban Law Journal

Systematic efforts to assess the legal landscape for the ordinary citizen - what legal services cost and what fraction of that cost is for real value - have been few and far between. Most studies focus instead on the performance of the legal system for corporate clients or on the delivery of legal services to the poor as a form of charity or welfare assistance. This article reviews and compares the few existing legal needs studies and looks for the macro indicators of the extent to which resources across the economy as a whole are devoted to providing legal inputs …

Nothing For Something? Denying Legal Assistance To Those Compelled To Participate In Adr Proceedings, Stephan Landsman

Fordham Urban Law Journal

The traditional view of the courts in their handling of unrepresented litigants has been that those who proceed pro se must look out for themselves and that there is no constitutional right to receive personal instruction from the trial judge on courtroom procedure. The opposing view, which has received increasing support, is that courts have a duty to ensure that pro se litigants do not lose their right to a hearing on the merits of their claim due to ignorance of technical procedural requirements. This Article explores the treatment of unrepresented litigants in ADR (alternative dispute resolution) settings, contends that …

If We Don't Get Civil Gideon: Trying To Make The Best Of The Civil-Justice Market, Thomas D. Rowe Jr.

Fordham Urban Law Journal

This article considers what market-oriented or market-regulation approaches might be most practical and helpful in trying to satisfy unmet civil legal-service needs and how much it appears that such approaches may be able to succeed in doing so.

Lawyerless Dispute Resolution: Rethinking A Paradigm, Jean R. Sternlight

Fordham Urban Law Journal

This Article suggests that our failure to focus on the possible need for representation in mediation and arbitration is fundamentally misguided. Although legal representation is no doubt more important in some contexts than others, it is wrong to make the binary assumption that legal representation is always more important in litigation than in ADR processes; legal representation may often be critically important in ADR processes. Because many disputes will be finally resolved in ADR and because legal representation can be equally or even more important in ADR than in litigation, we need to focus simultaneously on improving representation in both …

Examining The Real Demand For Legal Services, Herbert M. Kritzer

Fordham Urban Law Journal

Legal needs are real, but can also be virtually open-ended. Studies tell us that 85% of the civil legal needs of low income persons are currently not being met but we have no idea as to what portion of that 85% legal assistance would meaningfully help to resolve those needs, or how the cost of providing that assistance compares to the benefit that would be generated. This article examines extant studies of legal needs, and concludes that there is a need for baseline data to enable us to assess the degree of legal need that takes into account the range …

Human Rights Violations As Mass Torts: Compensation As A Proxy For Justice In The United States Civil Litigation System, Elizabeth J. Cabraser

Vanderbilt Law Review

On July 26, 2000, final approval was granted to a landmark $1.25 billion settlement of the claims of an international class of Holocaust victims against Swiss Banks that engaged in massive looting and misappropriation of assets entrusted to them by hundreds of thousands of Jews and other groups imprisoned, murdered, and dislocated by the Nazi regime. The Swiss Banks complaints linked the actions of Swiss financial institutions to the Nazi regime and its program of genocide.

The Swiss Banks litigation was brought and settled under federal class action rules in the United States District Court for the Eastern District of …

Some Practical Questions Concerning The Effect Of The Proposed Federal Securities Code On Civil Litigation, J. Vernon Patrick, Jr.

Vanderbilt Law Review

A major impetus for the launching of the Federal Securities Code project in 1969 was the view, widely held by businessmen and their lawyers, that it was far too easy for investors to bring class action suits under the federal securities laws, seeking multi-million dollar judgments against business corporations, directors, accountants, and lawyers.' The business community's concern about possible exposure to large judgments in securities litigation was heightened by the news that plaintiffs had obtained a judgment in a class action brought against the issuer and several "outside director"defendants in Escott v. Bar Chris Construction Corp., and by several United …

Indigent Access To Civil Courts: The Tiger Is At The Gates, Wayne H. Scott

Vanderbilt Law Review

The accusation that justice in America has become a luxury has been heard with increasing frequency in recent years. An often criticized aspect of this perceived discrimination is that the poor are systematically deprived of effective access, and frequently of any access at all, to the judicial process by the varied and burdensome expenses of civil litigation.' Although these financial barriers have been subjected to increasingly successful attacks in the courts, the extent to which they have been lowered remains unclear. Nevertheless, an examination of the steps already taken to alleviate the problem of the indigent civil litigant raises hopes …