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Full-Text Articles in Law
When Torts Met Civil Procedure: A Curricular Coupling, Laura G. Dooley, Brigham A. Fordham, Ann E. Woodley
When Torts Met Civil Procedure: A Curricular Coupling, Laura G. Dooley, Brigham A. Fordham, Ann E. Woodley
Laura Dooley
Law students must become adept at understanding how various bodies of law interact-supporting, balancing, and even conflicting with each other. This article describes an attempt to achieve these goals by merging two canonical first-year courses, civil procedure and torts, into an integrated class titled ‘Introduction to Civil Litigation’. Our most pressing motivation was concern that students who study civil procedure and torts in isolation develop a skewed, unrealistic view of how law works in the real world. By combining these courses, we hoped to teach students early in their careers to approach problems more like practicing lawyers, who must deal …
Superiority As Unity, Jay Tidmarsh
Superiority As Unity, Jay Tidmarsh
Jay Tidmarsh
One of Professor Redish’s many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay, prepared for a festschrift in honor of Professor Redish, begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they achieve …
The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Retrenchment, Stephen B. Burbank, Sean Farhang
The Subterranean Counterrevolution: The Supreme Court, The Media, And Litigation Retrenchment, Stephen B. Burbank, Sean Farhang
Sean Farhang
This article is part of a larger project to study the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we show how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for private enforcement. An institutional perspective helps to explain the outcome we document: the long-term erosion of the infrastructure of private enforcement as a result of …
Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang
Class Actions And The Counterrevolution Against Federal Litigation, Stephen B. Burbank, Sean Farhang
Sean Farhang
In this article we situate consideration of class actions in a framework, and fortify it with data, that we have developed as part of a larger project, the goal of which is to assess the counterrevolution against private enforcement of federal law from an institutional perspective. In a series of articles emerging from the project, we have documented how the Executive, Congress and the Supreme Court (wielding both judicial power under Article III of the Constitution and delegated legislative power under the Rules Enabling Act) fared in efforts to reverse or dull the effects of statutory and other incentives for …
Remedies: A Guide For The Perplexed, Doug Rendleman
Remedies: A Guide For The Perplexed, Doug Rendleman
Doug Rendleman
Remedies is one of a law student’s most practical courses. Remedies students and their professors learn to work with their eyes on the question at the end of litigation: what can the court do for the successful plaintiff? Remedies develops students’ professional identities and broadens their professional horizons by reorganizing their analysis of procedure, torts, contracts, and property around choosing and measuring relief - compensatory damages, punitive damages, an injunction, specific performance, disgorgement, and restitution. This article discusses the law-school course in Remedies - the content of the Remedies course, the Remedies classroom experience, and Remedies outside the classroom through …
Complexity In Litigation: A Differential Diagnosis, Curtis E.A. Karnow
Complexity In Litigation: A Differential Diagnosis, Curtis E.A. Karnow
Curtis E.A. Karnow
This note examines complex litigation with the goal of providing practical options for its management. It is written from a judge’s perspective. I review the definition of a “complex” case and explain its emphasis on the need for a judge to manage the case, with a focus on enabling settlement. I address a series of specific characteristics or aspects of complex cases, explaining how these affect the progress of the case. Then the note explores the many tools and techniques judges have to manage and ameliorate difficult aspects of complex cases. {Pre-print. Final article as published differs substantially and is …
Business Entities - Basic Legal Issues, Curtis E.A. Karnow
Business Entities - Basic Legal Issues, Curtis E.A. Karnow
Curtis E.A. Karnow
Brief introduction to certain business litigation issues including vicarious liability, sealing records, representation by counsel, qualification of domestic corporations; depositions of persons most knowledgeable, and conflicts of laws.
Class(Ic) Settlement Problems, Curtis E.A. Karnow
Class(Ic) Settlement Problems, Curtis E.A. Karnow
Curtis E.A. Karnow
A collection of classic problems in papers filed for preliminary court approval of class action settlements
Superiority As Unity, Jay Tidmarsh
Superiority As Unity, Jay Tidmarsh
Jay Tidmarsh
One of Professor Redish’s many important contributions to legal scholarship is his recent work on class actions. Grounding his argument in the theory of democratic accountability that has been at the centerpiece of all his work, Professor Redish suggests that, in nearly all instances, class actions violate the individual autonomy of litigants and should not be used by courts. This Essay begins from the opposite premise: that class actions should be grounded in the notion of social utility rather than autonomy so that class actions should be used whenever they achieve net social gains. This idea of “superiority” presents some …
Giving Notice: An Argument For Notification Of Putative Plaintiffs In Complex Litigation, Marjorie A. Silver
Giving Notice: An Argument For Notification Of Putative Plaintiffs In Complex Litigation, Marjorie A. Silver
Marjorie A. Silver
Professor Silver advocates recognition of an inherent judicial power to send or authorize notice of pending litigation to potentially interested persons with unfiled claims. Recognizing such a judicial power is consistent with recent legal developments establishing a role for judges in expediting and managing federal litigation. Although the Federal Rules of Civil Procedure only explicitly provide for notice to potential parties in Rule 23 class action litigation, Professor Silver demonstrates that a more general judicial power to notify putative plaintiffs is consistent with the federal rules and the Constitution. She also shows that the first amendment values support a judicial …
A Vaguely Jocular Guide To In Limine Motions, Curtis E.A. Karnow
A Vaguely Jocular Guide To In Limine Motions, Curtis E.A. Karnow
Curtis E.A. Karnow
A short review of problematic in limine (pre trial) motions
Back To The Future: Discovery Cost Allocation And Modern Procedural Theory, Martin H. Redish, Colleen Mcnamara
Back To The Future: Discovery Cost Allocation And Modern Procedural Theory, Martin H. Redish, Colleen Mcnamara
Martin H Redish
It has long been established that as a general rule, discovery costs are to remain with the party from whom discovery has been sought. While courts have authority to "shift" costs in an individual instance, the presumption against such an alteration in traditional practice is quite strong. Yet at no point did the drafters of the original Federal Rules of Civil Procedure ever make an explicit decision to allocate discovery costs in this manner. Nor, apparently, did they (or anyone since) ever explain why such an allocation choice is to be made in the first place. As a result, our …
Switzerland, Samuel P. Baumgartner
Switzerland, Samuel P. Baumgartner
Samuel P. Baumgartner
Switzerland has the traditional Austro-German representative association procedures. Debate on adoption of other models, given the opportunity of the introduction of a first federal Code of Civil Procedure, reveals considerable cautious conservatism toward reform.