Law Commons^™

Employment Discrimination Class Actions After Wal-Mart V. Dukes, Michael Selmi, Sylvia Tsakos

Akron Law Review

This Article explores the ramifications of Wal-Mart approximately five years after the case was decided. While five years hardly provides definitive data on how the case will be interpreted, it is possible to identify trends in the cases that have been decided to date—trends that are likely to provide insight into the future of class action claims. That future suggests that there will be fewer, and perhaps no, nationwide class actions in cases that do not involve a clear challenged practice (any such cases are likely to be disparate impact cases) and that the prospect for class certification will turn …

The Class Abides: Class Actions And The "Roberts Court", Elizabeth J. Cabraser

Akron Law Review

This Article does not delve deeply into the substantive issues of Wal-Mart, Concepcion, or Italian Colors...My focus is on how Rule 23 has fared, structurally and practically, in the aftermath of the “common answer” formulation of Wal-Mart; three other decisions of the Roberts Court, Dukes, Amgen, and Comcast; and three cases that the Roberts Court did not ultimately take in the wake of Amgen and Comcast: its denials of review in Whirlpool, Butler, and Deepwater. Also discussed is the newly intense debate on the use of cy pres, catalyzed by Chief Justice Roberts’ extraordinary “Statement” accompanying the denial of certiorari …

Suspicious Person Ordinances - Due Process Standards; Columbus V. Thompson, Joel R. Campbell

Akron Law Review

In the absence of circumstances involving First Amendment rights, we are left without guidelines as to the conduct which may be made criminal by local suspicious person ordinances. Because of this lack of adequate standards, a case by case determination of criminal conduct under the various ordinances is necessary. In Thompson the defendant's conduct was questionable and the court found the ordinance unconstitutionally vague. We can only hope that this decision has a sufficient impact upon law enforcement officials and local courts to minimize the injury resulting from vagueness.

The Ohio Rules Of Civil Procedure And Their Effect On Real Property Titles, Alvin W. Lasher

Akron Law Review

T HE REVOLUTION IS HERE! It has come quietly, almost without a murmur of opposition or civil discord. Indeed, many who will be most profoundly affected by it were not-are not even now, perhaps-aware of its coming. But it is here, nevertheless. The revolution in question, of course, relates not to some massive proletarian uprising which many today profess to see upon the horizon, but to the revolution in Ohio procedural law which became effective on July 1, 1970. For a revolution indeed it is, bringing changes so sweeping in their nature that the procedural law, both statutory and judge-made, …

The Ohio Rules Of Civil Procedure And Their Effect On Real Property Titles, Alvin W. Lasher

Akron Law Review

The revolution is here! It has come quietly, almost without a murmur of opposition or civil discord. Indeed, many who will be most profoundly affected by it were not-are not even now, perhaps-aware of its coming. But it is here, nevertheless. The revolution in question, of course, relates not to some massive proletarian uprising which many today profess to see upon the horizon, but to the revolution in Ohio procedural law which became effective on July 1, 1970. For a revolution indeed it is, bringing changes so sweeping in their nature that the procedural law, both statutory and judge-made, which …

Voir Dire: Strategy And Tactics In The Defense Of Social And Political Activists, Murray R. Bowes

Akron Law Review

With the courts increasingly being the forum for legal disputes between those who demand change in the superstructure and those who represent (or are) the structure, a rather unfortunate by-product has evolved: a feeling that the courts can no longer adequately dispense justice.8 This manifests itself in beliefs that if one is prosecuted for activities that were designed to advance social change, either in violation of the law or not, that the individual will not be afforded a fair trial; 9 a reflection that the social or political activist will not be judged by an impartial jury….For the purposes of …

The Prevailing Party Should Recover Counsel Fees, Michael F. Mayer, Wayne Stix

Akron Law Review

THE TIME HAS COME when our judicial system should make compensation to the prevailing party for expenses incurred in litigation a meaningful right, as opposed to a valueless gesture. In brief, this means that in the bulk of civil cases a successful party should no longer have to bear the full burden of his own counsel fees, and conversely those who take to our courts in vain should no longer be permitted to avoid the justice of substantial participation in the costs they have occasioned. To do this requires considerable alteration of the present cost structure applied by our rules …

Standing; Assertion Of Jus Tertii; Sex Discrimination; Equal Protection; Twenty-First Amendment; Craig V. Boren, Anthony Sadowski

Akron Law Review

"A PPELLANTS brought an action in the United States District Court for the Western District of Oklahoma seeking declaratory and injunctive relief. The complaint charged that the operation of two Oklahoma statutes, which prohibited the sale of 3.2% beer to males under the age of 21 while allowing females over the age of 18 to purchase the commodity, violated the fourteenth amendment to the Federal Constitution. The three-judge court held that the gender-based classification did not violate the equal protection clause. In Craig v. Boren, on direct appeal, the United States Supreme Court reversed, finding that the gender-based classification could …

Federal Rules Of Civil Procedure; Statute Of Limitations; State Policy; Relation Back; Marshall V. Mulrenin, Gary I. Kruger

Akron Law Review

Some federal courts have followed the rule that amendments to correct misnomer or misdescription of a defendant will relate back where the proper defendant is in court. An amendment which substitutes or adds a new party, however, creates a new cause of action, and under such circumstances, there is normally no relation back to original filing for purposes of limitations.' Since the 1966 amendment of rule 15(c), however, a number of courts have permitted amendments substituting defendants after the statute of limitations has run.

In Rem Jurisdiction; Due Process; Minimum Contacts; State Statutes; Shaffer V. Heitner, Richard S. Milligan

Akron Law Review

The decision of Shaffer v. Heitner marks a significant departure from established principles concerning in rem jurisdiction. No longer may a court take jurisdiction of a lawsuit merely by sequestering any property of the defendant that happens to be located in that state.

In Rem Jurisdiction; Attachment Of Insurance Debts; State Statutes; O'Connorv. Lee-Hy Paving Corp., Eloise Lubbinge Mackus

Akron Law Review

The United States Court of Appeals, Second Circuit, in O'Connor v. Lee-Hy Paving Corp., upheld New York's insurance attachment procedure which serves as a vehicle for gaining personal jurisdiction over out-of-state defendants in causes of action that arise outside of New York. The court thereby determined that New York federal courts, in applying the procedures, had not violated defendant's due process because the minimum contacts requirement of the recent United Stated Supreme Court case, Shaffer v. Heitner, had been met.

Quasi In Rem Jurisdication; Minimum Contacts; State Statutes; Intermeat, Inc. V. American Poultry, Inc., John D. Frisby Jr.

Akron Law Review

"The decision of Intermeat, Inc. v. American Poultry, Inc. is the first decision rendered by a federal appeals court based on the United States Supreme Court decision of Shaffer v. Heitner. The Shaffer Court handed down a landmark decision in 1977 that appeared at first light to aim the principles of quasi in rem jurisdiction in a new direction. From the date of the decision it appeared that a court could no longer take jurisdiction of a lawsuit based merely on the fact that property of the defendant was located in the state in which the suit was filed. However, …

Local Rules Of Court, J. Patrick Browne

Akron Law Review

In the vast majority of cases, the Ohio Rules of Civil Procedure will be the primary source of authority governing the practice and procedure to be followed. But in some instances, the primary source of authority will be statutory, and the applicable sections of the Ohio Revised Code may or may not be supplemented by the Ohio Rules of Civil Procedure.

The Citizen's Relief Against Inactive Federal Officials: Case Studies In Mandamus, Actions "In The Nature Of Mandamus," And Mandatory Injuctions, Howard W. Brill

Akron Law Review

Historically, the citizen-plaintiff would have sought the common law writ of mandamus if he were able to scale, or avoid, the threshold barriers of standing and sovereign immunity. This article will examine briefly the history of the writ of mandamus, the requirements for issuance of the writ, and the defenses accepted by courts to deny its issuance. The article will focus specifically on the unique position of the writ in federal courts, including its abolition by the Federal Rules of Civil Procedure.

Failure Of Commencement, The Forgotten Defense - A Comment On Ohio Civil Rule 3(A), Virginia L. Scigliano

Akron Law Review

This article will provide an in depth analysis of Rule 3(A). The analysis is divided into four sections. The first section examines the historical development of Rule 3(A) and the problems that developed and exist today. Section two discusses the meanings and specific interpretations given to the language of the rule. The unstated prerequisites of existence and capacity are analyzed in section three. And, in section four, Rule 3(A)'s forgotten defense is discussed and a model is developed for using the defense of failure to commence.

Procedural Defenses Available To The New-Party Defendant: The Necessity Of Obtaining Leave To Amend And Relation Back, F. Thomas Vickers

Akron Law Review

The application of the Rules of Civil Procedure to these various situations has been the subject of much judicial attention. In this regard, two issues have provoked the greatest amount of controversy, to wit: (1) whether leave of court is required prior to amendment of the complaint to add a new-party defendant, and (2) when and under what circumstances may a new-party defendant be brought into a civil action after the statute of limitations applicable to the claim asserted against him has expired. It is upon these questions that this paper is primarily focused.

Refereeing The Referees: The Continuing Procedural Muddle In Cases Of General Reference Pursuant To Ohio Rule Of Civil Procedure 53, Richard P. Perna

Akron Law Review

The judicial reference device set out in Rule 53 of the Ohio Rules of Civil Procedure was touted in 1974 as a procedure capable of relieving the "problem of justice delayed" by "easing the increasing judicial burden" on a besieged judiciary." While judicial reference is certainly no panacea for the problem (if numbers alone are a valid indicator), it is difficult to refute claims that the reference device contributes to a more efficient and speedy administration of justice.

Local Number 93, International Association Of Firefighters V. City Of Cleveland: A Consent Decree Is Not An Adjudicated Order For Purposes Of Title Vii, Paul Leslie Jackson

Akron Law Review

This note will examine the decision of the United States Supreme Court in Local 93, International Association of Firefighters v. City of Cleveland, and explore its potential implications in future Title VII actions. The issue the Supreme Court had to decide was whether a consent decree is a form of court ordered relief for purposes of Title VII litigation.

Batson V. Kentucky: Can The 'New' Peremptory Challenge Survive The Resurrection Of Strauder V. West Virginia?, Brian Wilson

Akron Law Review

It cannot be denied that our jury selection process has lent itself to invidious racial discrimination in the selection of jurors who ultimately decide the black defendant's guilt or innocence. This practice manifested itself in a line of decisions, beginning with Strauder v. West Virginia. The Strauder Court held that excluding qualified venirepersons on the basis of race violated the fourteenth amendment. However, the Supreme Court's refusal in Swain v. Alabama to subject petit jury peremptory challenges to constitutional scrutiny spawned much criticism from courts and commentators. As a result, the Court in Batson v. Kentucky decided to re-examine …

The Recent Amendment To Ohio Revised Code Section 2317.48, Kim M. Aumiller

Akron Law Review

Revised Code § 2317.48 was designed to enable a plaintiff to obtain information necessary to the drafting of a complaint. This discovery statute is one of the few statutes which was not repealed with the enactment of the Ohio Rules of Civil Procedure in 1970.

What one will not find, however, is the precise procedure to be followed in utilizing this discovery action. The procedural statutes which existed in the Revised Code were repealed upon enactment of the Civil Rules. Since then it has been difficult to know which procedural rules apply to Revised Code § 2317.48. Before the enactment …

Due Process As Consumer Protection: State Remedies For Distant Forum Abuse, Alan K. Chen

Akron Law Review

This article takes the position that distant forum abuse is a practice which should be and can be halted by the employment of state consumer protection statutes. The article first lays out a history of distant forum abuse and its role as a tool for debt collection harassment. Next, it examines legal developments in this area at both the federal and state levels, and explains the need for a more wide-reaching remedy in most jurisdictions. The third section briefly addresses important aspects of procedural waivers under contract law which must be taken into account by policy-makers when fashioning new remedies …

Ohio Jury Interrogatories: Civil Rule 49(B), Joyce J. George, Michael A. Partlow

Akron Law Review

Ohio's Civ. R. 49(B) permits parties to submit interrogatories to the jury in order to test the jury's thinking in rendering a verdict. Unlike traditional jury interrogatories, the rule limits interrogatories to subject matter normally associated with the special verdict. For centuries the use of the special verdict has plagued the legal community with confusion. The practitioner, the jury and the trial judge have each had difficulty in a variety of ways when the special verdict is involved.

Developing Standards For The Imposition Of Sanctions Under Rule 11 Of The Federal Rules Of Civil Procedure, Adam H. Bloomenstein

Akron Law Review

This article will argue that the standard for imposing sanctions under Rule 11 should focus on the nature of the conduct alleged to violate the rule. Sanctions under the rule can be triggered by different types of conduct. Certain types of conduct should be scrutinized more closely, requiring the imposition of sanctions more frequently. Factors such as whether a party subject to Rule 11 sanctions is acting pro se or through counsel should also impact on a decision to assess sanctions under Rule 11. Each type of conduct should be evaluated under an independent set of standards. Part I will …

Forum Shopping For Stale Claims: Statutes Of Limitations And Conflict Of Laws, Sam Walker

Akron Law Review

This article, however, has a modest goal. It will not argue for rationality or for a new interests analysis, as some scholars have done, or for consistency or for the adoption of one or the other of the proposed solutions. It will review the interstate and international aspects of statutes of limitations and examine the unique role of statute "havens" focusing not on criticism, but prediction. The most recent decisions by the United States, New Hampshire and Mississippi Supreme Courts indicate that discussion of what will, or what could, happen may be more valuable than discussion of what should happen …

Procuring Trial Testimony From Corporate Officers And Employees: Alternative Methods And Suggestions For Reform, Richard J. Oparil

Akron Law Review

This article discusses the situation under the current Federal Rules of Civil Procedure, including some alternative methods of obtaining testimony at trial. The article then discusses various ways the problem could be solved through rule changes to help ensure live trial testimony by corporate officials.

Ohio Appellate Practice Before And After Polikoff: Are Things Really All That Much Clearer?, Michael L. Buenger

Akron Law Review

Perhaps no topic in Ohio appellate practice is more confusing than determining what constitutes a final, appealable order in a special proceeding. ... The ability of a litigant to obtain immediate review of a trial court order may hinge on an appellate court resolving the difficult question of whether the proceeding from which the order emanated constituted a special proceeding under Ohio law.

The Supreme Court of Ohio, recognizing the difficulty in determining finality in a special proceeding has, like the appellate courts, struggled to articulate clearer guidelines and a more precise standard for resolving the question. The supreme court's …

Will Employment Discrimination Class Actions Survive?, Melissa Hart

Akron Law Review

This paper will argue that the changes wrought by the Civil Rights Act of 1991 do not in fact pose a barrier to resolution of employment discrimination claims through class litigation. The addition of compensatory and punitive damages and a jury-trial right in the Civil Rights Act of 1991 may increase the level of scrutiny and perhaps the level of judicial involvement necessary in an employment discrimination class action. But they do not render such a class action either impermissible under Rule 23 or violative of due process or Seventh Amendment jury trial rights. Courts and commentators who insist that …

"Procedural Swift": Complex Litigation Reform, State Tort Law, And Democratic Values, Joellen Lind

Akron Law Review

My discussion is made in the spirit of an essay and proceeds in four major parts. Part II, Diversity Jurisdiction and Democracy, describes the problematic connection between democratic values and diversity jurisdiction. It explains that when Congress deploys minimal diversity to make access to federal courts available in class action and mass tort cases there are potential risks to the role of states in promoting the democratic values of political participation, transparency, and accountability. Part III, Complex Litigation—The Rationale for Intrusion relates these issues to the specific reforms in complex litigation recently initiated by Congress. Part IV, Tilting the Playing …

Electronic Data, Electronic Searching, Inadvertent Production Of Privileged Data: A Perfect Storm, Donald Wochna

Akron Law Review

This article suggests that the practical impact of treating electronic searching as an expert function is to permit attorneys to focus and strategize on the process of electronic searching rather than on the completeness of document production. In effect, electronic searching permits attorneys to quit focusing on finding documents and begin focusing on identifying electronic sources of information on which reside relevant documents that can be extracted by means of electronic searching protocols.

Reconstructing Pleading: Twombly, Iqbal, And The Limited Role Of The Plausibility Inquiry, Stephen R. Brown

Akron Law Review

Although critics have generally failed to appreciate the limited role of the plausibility inquiry, it is still necessary in some cases. I will therefore, in the discussion of plausibility within the three-step framework, provide a general defense of Twombly and Iqbal by recasting the decisions in light of a plaintiff‘s burden to certify to a court that the factual contentions in a complaint ―will likely have evidentiary support under Rule 11. Under this view of the plausibility inquiry, a court acts as a neutral third-party that simply evaluates a plaintiff‘s ability to predict her own likelihood of success. Instead, a …