Law Commons^™

Inadvertent Waiver Of The Attorney-Client Privilege By Disclosure Of Documents: An Economic Analysis, Alan J. Meese

Alan J. Meese

No abstract provided.

Waiting For Davis V. United States -- Or Not Waiting, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Trivia From The Supreme Court Order List, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Responding To The Loss Of An En Banc Quorum (Update: Prawfsblawg Gets Results!?), Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Did The Supreme Court Recently Exercise A Power That Had Lain Dormant For Decades?, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Deferring To Agency Amicus Briefs That Present New Guidance, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

At&T'S Long Game On Unconscionability, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

At&T V. Concepcion And Adherence To Minority Views, Aaron-Andrew P. Bruhl

Aaron-Andrew P. Bruhl

No abstract provided.

Conformity And The Rules Of Civil Procedure: Lessons From Tennessee, Matthew Lyon

Matthew Lyon

Optimal Class Size, Opt-Out Rights, And "Indivisible" Remedies, Jay Tidmarsh, David Betson

Jay Tidmarsh

Prepared for a Symposium on the ALI’s Aggregate Litigation Project, this paper examines the ALI’s proposal to permit opt-out rights when remedies and “divisible,” but not to permit them when remedies are “indivisible.” Starting from the ground up, the paper employs economic analysis to determine what the optimal size of a class action should be. We demonstrate that, in some circumstances, the optimal size of a class is a class composed of all victims, while in other cases, the optimal size is smaller. We further argue that courts should consider optimal class size in determining whether to certify a class, …

Comin' Through The Rye: A Requiem For The Tennessee Summary Judgment Standard, Matthew Lyon, Judy M. Cornett, T. Mitchell Panter

Matthew Lyon

Joint And Several Jurisdiction, Scott Dodson, Philip Pucillo

Scott Dodson

Calibrating Participation: Reflections On Procedure Versus Procedural Justice, Elizabeth Chamblee Burch

Elizabeth Chamblee Burch

Conflict Of Laws, James P. George, Susan T. Phillips

Susan T. Phillips

States' and nations' laws collide when foreign factors appear in a lawsuit. Nonresident litigants, incidents outside the forum, and judgments from other jurisdictions can create problems with personal jurisdiction, choice of law, and the recognition of foreign judgments. This Article reviews Texas conflict cases from Texas state and federal courts during the Survey-period from November 1, 2011 through October 31, 2013. The Article excludes cases involving federal-state conflicts; intrastate issues, such as subject matter jurisdiction and venue; and conflicts in time, such as the applicability of prior or subsequent law within a state. State and federal cases are discussed together …

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, 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.

Procedural Triage, Matthew Lawrence

Matthew B. Lawrence

De Graça, Até Injeção Na Testa: Análise Juseconômica Da Gratuidade De Justiça, Ivo T. Gico Jr., Henrique A. Arake

Ivo Teixeira Gico Jr.

A gratuidade de justiça para os “juridicamente pobres” é um solução possível para garantir o livre acesso ao Judiciário. No entanto, concedida de forma irrestrita, a gratuidade pode induzir à litigância frívola. O presente artigo emprega a Análise Econômica do Direito para analisar a estrutura de incentivos dos agentes privados criada pela gratuidade de justiça e explora suas consequências sociais.

Is The Supreme Court Disabling The Enabling Act, Or Is Shady Grove Just Another Bad Opera?, Robert J. Condlin

Robert J. Condlin

After seventy years of trying, the Supreme Court has yet to agree on whether the Rules Enabling Act articulates a one or two part standard for determining the validity of a Federal Rule. Is it enough that a Federal Rule regulates “practice and procedure,” or must it also not “abridge substantive rights”? The Enabling Act seems to require both, but the Court is not so sure, and the costs of its uncertainty are real. Among other things, litigants must guess whether the decision to apply a Federal Rule in a given case will depend upon predictable ritual, judicial power grab, …

Mapping Supreme Court Doctrine: Civil Pleading, Scott Dodson, Colin Starger

Scott Dodson

This essay, adapted from the video presentation available at http://vimeo.com/89845875, graphically depicts the genealogy and evolution of federal civil pleading standards in U.S. Supreme Court opinions over time. We show that the standard narrative—of a decline in pleading liberality from Conley to Twombly to Iqbal—is complicated by both progenitors and progeny. We therefore offer a fuller picture of the doctrine of Rule 8 pleading that ought to be of use to judges and practitioners in federal court. We also hope to introduce a new visual format for academic scholarship that capitalizes on the virtues of narration, graphics, mapping, online accessibility, …

Party Subordinance In Federal Litigation, Scott Dodson

Scott Dodson

American civil litigation in federal courts operates under a presumption of party dominance. Parties choose the lawsuit structure, factual predicates, and legal arguments, and the court accepts these choices. Further, parties enter ubiquitous ex ante agreements that purport to alter the law governing their dispute, along with a chorus of calls for even more party-driven customization of litigation. The assumption behind this model of party dominance is that parties substantially control both the law that will govern their dispute and the judges that oversee it. This Article challenges that assumption by offering a reoriented model of party subordinance. Under my …

Updates Editor: Chapters 3, 6, 31-36, 54, 55, 77-81, Robert Bloom

Robert Bloom

No abstract provided.

Introduction To The Civil Procedure Puzzle, Robert Bloom

Robert Bloom

No abstract provided.

Federal Rules Of Civil Procedure. Rule 55 – Default Judgement, Robert Bloom

Robert Bloom

No abstract provided.

Erie’S Suppressed Premise, Michael S. Green

Michael S. Green

No abstract provided.

Twombly Is The Logical Extension Of The Mathews V. Eldridge Test To Discovery, Andrew Blair-Stanek

Andrew Blair-Stanek

The Supreme Court’s 2007 decision in Bell Atlantic Corp. v. Twombly has baffled and mystified both practitioners and scholars, casting aside the well-settled rule for evaluating motions to dismiss in favor of an amorphous “plausibility” standard. This Article argues that Twombly was not revolutionary but simply part of the Court’s ever-expanding application of the familiar three-factor Mathews v. Eldridge test. Misused discovery can deprive litigants of property and liberty interests, and in some cases Mathews requires the safeguard of dismissing the complaint. This Article’s insight explains Twombly’s origins and structure, while also suggesting a source for lower courts to draw …

Experiencing Civil Procedure, James Moliterno

James E. Moliterno

No abstract provided.

Moore's Federal Practice (2013 Edition), Daniel Coquillette

Daniel R. Coquillette

Moore's Federal Practice is the backbone of any federal litigator's library. Comprehensive and authoritative, Moore's is written by the judges, lawyers, and professors who write and amend the Federal Rules, and is LexisNexis Matthew Bender's flagship treatise on federal civil, criminal, appellate, and admiralty procedure.

The first edition of this venerable work was written by the late Professor James William Moore, one of the original drafters of the Federal Rules of Civil Procedure, in 1938. From its initial publication, Moore's instantly became, and remains today, the standard reference work on federal court procedure and has been cited thousands of times …

Chapters Of The Civil Jury, Doug R. Rendleman

Doug Rendleman

The civil jury, though constitutionally protected by the seventh amendment, has remained a controversial institution throughout much of Anglo-American legal history. Our romantic ideals are questioned by critics who view the civil jury as prejudiced and unpredictable; proponents note the sense of fairness and "earthy wisdom" gained by community participation in the legal process. This debate surfaces in the process of accommodation between certain substantive goals of the law and the pre-verdict and post-verdict procedural devices courts have employed to control the jury. In this article, Professor Rendleman examines this conflict in his three "chapters" involving racially motivated discharges of …

Simplification- A Civil Procedure Perspective, Doug Rendleman

Doug Rendleman

No abstract provided.