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Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards
Telling Stories In The Supreme Court: Voices Briefs And The Role Of Democracy In Constitutional Deliberation, Linda H. Edwards
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On January 4, 2016, over 112 women lawyers, law professors, and former judges told the world that they had had an abortion. In a daring amicus brief that captured national media attention, the women “came out” to their clients; to the lawyers with or against whom they practice; to the judges before whom they appear; and to the Justices of the Supreme Court.
The past three years have seen an explosion of such “voices briefs,” 16 in Obergefell and 17 in Whole Woman’s Health. The briefs can be powerful, but their use is controversial. They tell the stories of non-parties—strangers …
Setting Foot On Enemy Ground: Cease-And-Desist Letters, Dmca Notifications And Personal Jurisdiction In Declaratory Judgment Actions, Marketa Trimble
Setting Foot On Enemy Ground: Cease-And-Desist Letters, Dmca Notifications And Personal Jurisdiction In Declaratory Judgment Actions, Marketa Trimble
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In declaratory judgment actions brought by alleged infringers against rights holders, such as actions for declaration of invalidity or non-infringement of intellectual property rights, U.S. courts have long maintained that sending a cease-and-desist letter alone, absent other acts in an alleged infringer's forum, is not a sufficient basis for personal jurisdiction over the rights holder who mailed them to the alleged infringer's forum. Notwithstanding the similarities between cease-and-desist letters and notifications under the Digital Millennium Copyright Act (DMCA), the Tenth Circuit Court of Appeals recently decided that sending a notification alone does establish a basis for personal jurisdiction over the …
The Procedural Foundation Of Substantive Law, Thomas O. Main
The Procedural Foundation Of Substantive Law, Thomas O. Main
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The substance-procedure dichotomy is a popular target of scholarly criticism because procedural law is inherently substantive. This article argues that substantive law is also inherently procedural. I suggest that the construction of substantive law entails assumptions about the procedures that will apply when that substantive law is ultimately enforced. Those procedures are embedded in the substantive law and, if not applied, will lead to over- or under-enforcement of the substantive mandate. Yet the substance-procedure dichotomy encourages us to treat procedural systems as essentially fungible-leading to a problem of mismatches between substantive law and unanticipated procedures. I locate this argument about …
Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel
Mandating Minimum Quality In Mass Arbitration, Jeffrey W. Stempel
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The Supreme Court's decision in McMahon and its progeny has led many businesses and employers to embrace what was once deemed a localized, industry-specific practice. The "new" or "mass arbitration" only mildly resembles the traditional system employed by niches in industry for settling commercial matters among commercial actors. While the "old" system involved parties who were relatively equal in bargaining power and knowledge, these systems for mass arbitration lack a freely entered bargain and resemble more closely, contracts of adhesion. Privatized arbitration resolves issues of both statutory and substantive law, and there is a strong argument, given the inexperience of …
Class Actions And Limited Vision: Opportunities For Improvement Through A More Functional Approach To Class Treatment Of Disputes, Jeffrey W. Stempel
Class Actions And Limited Vision: Opportunities For Improvement Through A More Functional Approach To Class Treatment Of Disputes, Jeffrey W. Stempel
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This Article describes the evolution of the perception of the modern class action from populist darling to greedy lawyer pariah, including recent passage of CAFA. It then examines the degree to which different types of cases present different potential benefits and detriments of class action treatment and explains why investor class actions, including those brought by institutional investors, are particularly likely to benefit from class treatment, are resistant to many of the perceived problems of class actions in other contexts, and should receive a warmer welcome from courts, both in absolute terms and relative to other types of class actions. …
Symposium Introduction: Perspectives On Dispute Resolution In The Twenty-First Century, Jeffrey W. Stempel
Symposium Introduction: Perspectives On Dispute Resolution In The Twenty-First Century, Jeffrey W. Stempel
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No abstract provided.
Contracting Access To The Courts: Myth Or Reality? Bane Or Boon?, Jeffrey W. Stempel
Contracting Access To The Courts: Myth Or Reality? Bane Or Boon?, Jeffrey W. Stempel
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Many scholars of the dispute resolution system perceive a sea change in attitudes toward adjudication that took place in the mid-1970s. Among the events of the time included the Pound Conference, which put the Chief Justice of the United States and the national judicial establishment on record in favor of at least some refinement, if not restriction, on access to courts. In addition, Chief Justice Burger, the driving force behind the Pound Conference, also used his bully pulpit as Chief Justice of the Supreme Court to promote ADR, particularly court-annexed arbitration. The availability of judicial adjuncts such as court-annexed arbitration …
Halting Devolution Or Bleak To The Future? Subrin's New-Old Procedure As A Possible Antidote To Dreyfuss's "Tolstoy Problem", Jeffrey W. Stempel
Halting Devolution Or Bleak To The Future? Subrin's New-Old Procedure As A Possible Antidote To Dreyfuss's "Tolstoy Problem", Jeffrey W. Stempel
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Professors Rochelle Dreyfuss and Stephen Subrin first presented their ideas on the 1993 Amendments to the Federal Rules of Civil Procedure (Civil Rules) at the 1994 Annual Meeting of the Association of American Law Schools (AALS) in a program titled, “The 1993 Discovery Amendments: Evolution, Revolution, or Devolution?” After the program, I was left with the depressing view that the answer was devolution, which is defined as a “retrograde evolution,” or “degeneration.” Dreyfuss provides a detailed but succinct review of the changes in discovery occasioned by the new rules as well as a vantage point for assessing the social and …
New Paradigm, Normal Science, Or Crumbling Construct? Trends In Adjudicatory Procedure And Litigation Reform, Jeffrey W. Stempel
New Paradigm, Normal Science, Or Crumbling Construct? Trends In Adjudicatory Procedure And Litigation Reform, Jeffrey W. Stempel
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One aspect of a possible new era is the increasing ad hoc activity of various interest groups, including the bench and the organized bar, primarily pursued through official organizations such as the Judicial Conference, the Federal Judicial Center, the American Bar Association (“ABA”), and the American Law Institute. Traditionally, of course, judges and lawyers have lobbied Congress and state legislatures for litigation change, as demonstrated by the saga of the Rules Enabling Act (“Enabling Act” or “Act”). But, the legal profession's more recent “political” activity regarding litigation reform differs from the traditional model in several ways. First, the participation of …
Sanctions, Symmetry, And Safe Harbors: Limiting Misapplication Of Rule 11 By Harmonizing It With Pre-Verdict Dismissal Devices, Jeffrey W. Stempel
Sanctions, Symmetry, And Safe Harbors: Limiting Misapplication Of Rule 11 By Harmonizing It With Pre-Verdict Dismissal Devices, Jeffrey W. Stempel
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With only a small risk of overstatement, one could say that sanctions in civil litigation exploded during the 1980s, with the 1983 amendment to Federal Rule of Civil Procedure 11 acting as the principal catalyst. From 1938 until the 1983 amendment, only two dozen or so cases on Rule 11 were reported, with courts rarely imposing sanctions. Although a few cases were notable by virtue of sanction size, prestige of the firm sanctioned, or publicity attending the underlying case, the legal profession largely regarded Rule 11 as a dead letter. In addition, other sanctions provisions, such as Federal Rule of …