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Civil Procedure

Southern Methodist University

Discovery

Articles 1 - 5 of 5

Full-Text Articles in Law

Cognitive Bias, The 'Band Of Experts,' And The Anti-Litigation Narrative, Elizabeth G. Thornburg Jan 2016

Cognitive Bias, The 'Band Of Experts,' And The Anti-Litigation Narrative, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

In December of 2015, yet another set of discovery rule amendments that are designed to limit discovery will go into effect. This article argues that the consistent pattern of discovery retrenchment is no accident. Rather, a combination of forces is at work. The Supreme Court consistently signals its contempt for the discovery process, and the Chief Justice’s pattern of appointments to the Rules Committees skews toward Big Law defense-side lawyers and judges appointed by Republican Presidents. In addition, longstanding corporate media campaigns have created and reinforced an anti-litigation narrative that, through the power of repetition, dominates public discourse. Further, predictable …


Just Say 'No Fishing': The Lure Of Metaphor, Elizabeth G. Thornburg Jan 2006

Just Say 'No Fishing': The Lure Of Metaphor, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

The phrase "fishing expedition" is widely used in popular culture and in the law. In the case of metaphorical "fishing" in the law, reliance on the metaphor can act as a substitute for rigorous analysis, disguising the factors that influence a result. When used by the court, it is uninformative. Worse, the fishing metaphor may itself shape the way the court thinks about the kind of issue or claim involved. Accusations of "fishing" also affect the language and position of the litigants. Parties arguing against pleadings or discovery use the metaphor as a rhetorical weapon, stigmatizing their opponents, instead of …


Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg Jan 2004

Contracting With Tortfeasors: Mandatory Arbitration Clauses And Personal Injury Claims, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

People thinking about contractual arbitration clauses usually envision the resulting disputes as contractual in nature. However, there is also a group of cases in which the clauses are used to compel arbitration of personal injury claims. This article examines those cases, including the impact of the Federal Arbitration Act on their enforcement. Next, the article considers the ways in which these pre-dispute, mandatory arbitration clauses can disturb the traditional values of procedural justice, contractual fairness, and the enforcement of tort-based duties. Finally, the article proposes changes in the law of arbitration and evaluates whether such changes are politically feasible.


Work Product Rejected: A Reply To Professor Allen, Elizabeth G. Thornburg Jan 1992

Work Product Rejected: A Reply To Professor Allen, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article responds to Professor Ronald Allen's Work Product Revisited: A Comment on Rethinking Work Product.


Rethinking Work Product, Elizabeth G. Thornburg Jan 1991

Rethinking Work Product, Elizabeth G. Thornburg

Faculty Journal Articles and Book Chapters

This article analyzes the traditional and law & economics explanations purporting to justify the exclusion of work product materials from discovery. It argues that none of these arguments are well founded and that, instead, the privilege increases costs and decreases the system's ability to produce appropriate settlements and accurate fact finding. To the extent that the privilege serves legitimate ends, narrower and more narrowly tailored protections would provide the necessary protection.