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Articles 1 - 30 of 44
Full-Text Articles in Law
Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell
Reforming Property Law To Address Devastating Land Loss, Thomas W. Mitchell
Thomas W. Mitchell
Tenancy-in-common ownership represents the most widespread form of common ownership of real property in the United States. Such ownership under the default rules also represents the most unstable ownership of real property in this country. Thousands of tenancy-in-common property owners, including members of many poor and minority families, have lost their commonly-owned property due to court-ordered, forced partition sales as well as much of their real estate wealth associated with such ownership as a result of such sales. Though some scholars and the media have highlighted how thousands of African-Americans have lost an untold amount of property and substantial real …
A View From The Sky: A General Overview About Civil Litigation In The United States With Reference To The Relief In Small And Simple Matters, Manuel A. Gómez, Juan Carlos Gómez
A View From The Sky: A General Overview About Civil Litigation In The United States With Reference To The Relief In Small And Simple Matters, Manuel A. Gómez, Juan Carlos Gómez
Manuel A. Gómez
This article, which is based on the research conducted for the General Report ‘Relief in Small and Simple Matters in an Age of Austerity’ presented at the XV World Congress of Procedural Law, provides a contextualised and broad overview of these phenomena in the United States. After describing the general features of the federal and state judiciaries, including its adversarial model of judging, and the importance of the jury system, the article turns its attention to discuss the factors that affect the cost of litigation in the United States, the different models of litigation funding, the available legal aid mechanisms, …
The Law And Ethics Of Civil Depositions , A. Darby Dickerson
The Law And Ethics Of Civil Depositions , A. Darby Dickerson
Darby Dickerson
No abstract provided.
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 …
Resolving Cases On The Merits, Jay Tidmarsh
Resolving Cases On The Merits, Jay Tidmarsh
Jay Tidmarsh
Prepared for a Symposium on Civil Justice Reform, this essay examines the role of the “on the merits” principle in modern American procedure. After surveying the possible meanings of the phrase, the essay critiques its most common understanding due to its economic inefficiency and its lack of strong philosophical support. Relying on the recent work of Amartya Sen, the essay proposes that the principle be replaced with a “fair outcome” principle that melds both “procedural” and “substantive” concerns.
Cy Pres And The Optimal Class Action, Jay Tidmarsh
Cy Pres And The Optimal Class Action, Jay Tidmarsh
Jay Tidmarsh
This Article, prepared for a symposium on class actions, examines the problem of cy pres relief through the lens of ensuring that class actions have an optimal claim structure and class membership. It finds that the present cy pres doctrine does little to advance the creation of optimal class actions, and may do some harm to achieving that goal. The Article then proposes an alternative “nudge” to induce putative class counsel to structure class actions in an optimal way: set attorneys’ fees so that counsel is compensated through a combination of an hourly market rate and a percentage of the …
Improving Predictability And Consistency In Class Action Tolling, Tanya Pierce
Improving Predictability And Consistency In Class Action Tolling, Tanya Pierce
Tanya Pierce
Class action tolling means that when parties in a suit allege federal treatment, the individual claims of putative class members are tolled federal courts while the class action is pending. Commonly referred to as American Pipe tolling, this rule prevents duplicative litigation that would result if plaintiffs were required to intervene or file independent lawsuits to protect their interests while the class action was pending. Federal courts have long settled the application of American Pipe tolling in scenarios involving later-filed individual actions. In other scenarios, however, the application of American Pipe tolling has caused considerable uncertainty. This Article examines the …
Resurrecting Trial By Statistics, Jay Tidmarsh
Resurrecting Trial By Statistics, Jay Tidmarsh
Jay Tidmarsh
“Trial by statistics” was a means by which a court could resolve a large number of aggregated claims: a court could try a random sample of claim, and extrapolate the average result to the remainder. In Wal-Mart, Inc. v. Dukes, the Supreme Court seemingly ended the practice at the federal level, thus removing from judges a tool that made mass aggregation more feasible. After examining the benefits and drawbacks of trial by statistics, this Article suggests an alternative that harnesses many of the positive features of the technique while avoiding its major difficulties. The technique is the “presumptive judgment”: a …
Communication And Competence For Self-Representation, E. Lea Johnston
Communication And Competence For Self-Representation, E. Lea Johnston
E. Lea Johnston
In Indiana v. Edwards, the U.S. Supreme Court held that states may impose a higher competency standard for self-representation than to stand trial in criminal cases. While the Court articulated a number of interests relevant to representational competence, it left to states the difficult task of formulating an actual competence standard. This Article offers the first examination and assessment of the constitutionality of state standards post-Edwards. It reveals that seven states have endorsed a representational competence standard with a communication component. Additionally, twenty states have embraced vague, capacious standards that could consider communication skills. In applying these standards, states …
Communication And Competence For Self-Representation, E. Lea Johnston
Communication And Competence For Self-Representation, E. Lea Johnston
E. Lea Johnston
In Indiana v. Edwards, the U.S. Supreme Court held that states may impose a higher competency standard for self-representation than to stand trial in criminal cases. While the Court articulated a number of interests relevant to representational competence, it left to states the difficult task of formulating an actual competence standard. This Article offers the first examination and assessment of the constitutionality of state standards post-Edwards. It reveals that seven states have endorsed a representational competence standard with a communication component. Additionally, twenty states have embraced vague, capacious standards that could consider communication skills. In applying these standards, states …
Reproduced With Permission From Bloomberg Law: Litigation Practice Portfolio Series, Portfolio 60: Removal. Copyright 2016 By The Bureau Of National Affairs, Inc. (800-372-1033) Http://Www.Bna.Com, Randy D. Gordon, Charles North
Reproduced With Permission From Bloomberg Law: Litigation Practice Portfolio Series, Portfolio 60: Removal. Copyright 2016 By The Bureau Of National Affairs, Inc. (800-372-1033) Http://Www.Bna.Com, Randy D. Gordon, Charles North
Randy D. Gordon
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 …
Evidence In Context: A Trial Evidence Workbook, James Seckinger, Robert Burns, Steven Lubet
Evidence In Context: A Trial Evidence Workbook, James Seckinger, Robert Burns, Steven Lubet
James H. Seckinger
No abstract provided.
Dixon V. Providential Life Insurance Co.: Technology Case File, James Seckinger, Frank Rothschild, Edward Stein
Dixon V. Providential Life Insurance Co.: Technology Case File, James Seckinger, Frank Rothschild, Edward Stein
James H. Seckinger
No abstract provided.
Potter V. Shrackle And The Shrackle Construction Company Case File, Kenneth Broun, Frank Rothschild., James Seckinger
Potter V. Shrackle And The Shrackle Construction Company Case File, Kenneth Broun, Frank Rothschild., James Seckinger
James H. Seckinger
The problems in this book are intended to simulate realistic courtroom situations. Advance preparation is essential to their successful utilization as instructional materials.
Complex Litigation: Problems In Advanced Civil Procedure, Jay Tidmarsh, Roger Trangsrud.
Complex Litigation: Problems In Advanced Civil Procedure, Jay Tidmarsh, Roger Trangsrud.
Jay Tidmarsh
Offers concepts of and insights into the forms and functions of complex litigation issues, including their implications. Helps students in such courses to review and study, as well as serves as a reference book for students once they are in practice.
Sanctions Imposable For Violations Of The Federal Rules Of Civil Procedure, Kenneth Ripple, Robert Rodes, Carol Mooney, Robert Rodes
Sanctions Imposable For Violations Of The Federal Rules Of Civil Procedure, Kenneth Ripple, Robert Rodes, Carol Mooney, Robert Rodes
Robert Rodes
This 1981 Federal Judicial Center paper surveys the current state of the law with respect to sanctions for violations of the Federal Rules of Civil Procedure as reported in both the case law and the secondary literature. The focus is on litigation behavior that results in the imposition of sanctions and the factors considered important by federal courts in determining which sanctions to apply.
Mandatory Process, Matthew Lawrence
Mandatory Process, Matthew Lawrence
Matthew B. Lawrence
Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh
Is That All There Is? "The Problem" In Court-Oriented Mediation, Leonard L. Riskin, Nancy A. Welsh
Leonard L Riskin
The alternative process of mediation is now well-institutionalized and widely (though not universally) perceived to save time and money and satisfy lawyers and parties. However, the process has failed to meet important aspirations of its early proponents and certain expectations and needs of one-shot players. In particular, court-oriented mediation now reflects the dominance and preferences of lawyers and insurance claims adjusters. These repeat players understand the problem to be addressed in personal injury, employment, contract, medical malpractice and other ordinary civil non-family disputes as a matter of merits assessment and litigation risk analysis. Mediation is structured so that litigation issues …
Cy Pres And The Optimal Class Action, Jay Tidmarsh
Cy Pres And The Optimal Class Action, Jay Tidmarsh
Jay Tidmarsh
Prepared for a symposium on class actions, this Article examines the problem of cy pres relief in class actions through the lens of optimal claim structure and class membership. It finds that the present cy pres doctrine does little to advance the creation of optimal class actions, and that it may do some harm to achieving that goal. The Article then proposes an alternative “nudge” to induce putative class counsel to structure class actions in an optimal way: setting attorneys’ fees so that counsel is compensated through a combination of an hourly market rate and a percentage of the net …
Pound's Century, And Ours, Jay Tidmarsh
Civil Procedure: The Last Ten Years, Jay Tidmarsh
Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky
Intellectual Property Defenses, Alex Stein, Gideon Parchomovsky
Alex Stein
This Article demonstrates that all intellectual property defenses fit into three conceptual categories: general, individualized, and class defenses. A general defense challenges the validity of the plaintiff’s intellectual property right. When raised successfully, it annuls the plaintiff’s right and relieves not only the defendant, but also the entire world of the duty to comply with it. An individualized defense is much narrower in scope: Its successful showing defeats the specific infringement claim asserted by the plaintiff, but leaves the plaintiff’s right intact. Class defenses form an in-between category: They create an immunity zone for a certain group of users to …
Simplification- A Civil Procedure Perspective, Doug Rendleman
Simplification- A Civil Procedure Perspective, Doug Rendleman
Doug Rendleman
No abstract provided.
Simplification- A Civil Procedure Perspective, Doug Rendleman
Simplification- A Civil Procedure Perspective, Doug Rendleman
Doug Rendleman
No abstract provided.
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 …
Courts Should Apply A Relatively More Stringent Pleading Threshold To Class Actions, Matthew Lawrence
Courts Should Apply A Relatively More Stringent Pleading Threshold To Class Actions, Matthew Lawrence
Matthew B. Lawrence
Simplification- A Civil Procedure Perspective, Doug Rendleman
Simplification- A Civil Procedure Perspective, Doug Rendleman
Doug Rendleman
No abstract provided.
Procedure, Politics, Prediction, And Professors: A Response To Professors Burbank And Purcell, Stephen Subrin
Procedure, Politics, Prediction, And Professors: A Response To Professors Burbank And Purcell, Stephen Subrin
Stephen N. Subrin
In this article I comment on four themes in the work of Stephen Burbank and Edward Purcell, two of the leading scholars of American civil procedure and procedural reform: (1) the relationship of substantive and procedural law; (2) the place of politics in procedural reform; (3) the difficulty of reliably predicting consequences of procedural reform; and (4) challenges that the Class Action Fairness Act of 2005 (CAFA) and similar reforms present for law professors, both in their roles as researchers and writers, and as teachers of would-be lawyers.
Federal Rules, Local Rules, And State Rules: Uniformity, Divergence, And Emerging Procedural Patterns, Stephen Subrin
Federal Rules, Local Rules, And State Rules: Uniformity, Divergence, And Emerging Procedural Patterns, Stephen Subrin
Stephen N. Subrin
No abstract provided.