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Full-Text Articles in Law
Towards A New Paradigm For E-Discovery In Civil Litigation: A Judicial Perspective, William Matthewman
Towards A New Paradigm For E-Discovery In Civil Litigation: A Judicial Perspective, William Matthewman
Florida Law Review
The Federal Rules of Civil Procedure provide the basic framework for production of discovery that is relevant and proportional to litigants’ claims and defenses. In the past, litigants and attorneys far too often used these rules to obstruct the discovery process rather than to facilitate it. This Old Discovery Paradigm used overbroad discovery requests, boilerplate discovery responses, dilatory behavior, and a lack of cooperation among opposing counsel. However, with the emergence of ever-expanding technologies using email, texts, and other forms of electronic communication, the modern legal system requires a New E-Discovery Paradigm to govern how litigants, their counsel, and judges …
Waiving Removal, Waiving Remand–The Hidden And Unequal Dangers Of Participating In Litigation, Joan Steinman
Waiving Removal, Waiving Remand–The Hidden And Unequal Dangers Of Participating In Litigation, Joan Steinman
Florida Law Review
The law governing removal of cases to federal court and remand of cases from federal court has increasingly been codified. But what is not codified is left to courts, and courts have created bodies of law concerning waiver of the right to remove and waiver of the right to remand that are strongly skewed against plaintiffs and in favor of federal court adjudication, even in cases that raise only substantive state law issues. This a problem because there is no reason to believe that this development of the law is consistent with Congressional intent, or with an appropriate allocation of …
The Stealth Revolution In Personal Jurisdiction, Michael H. Hoffheimer
The Stealth Revolution In Personal Jurisdiction, Michael H. Hoffheimer
Florida Law Review
Since 2011 the Roberts Court has decided six personal jurisdiction cases that impose significant new constitutional restrictions on the power of courts and limit plaintiffs’ access to justice. But the Court’s opinions explaining those decisions have repeatedly denied that the Court is altering settled law. This Article argues that the Court is engaged in a stealth revolution, a process of radically changing existing law while claiming to follow controlling precedent. By claiming to rely on precedent, the Court avoids the need to offer a clear rule of decision, fails to explain the policies that motivate its changing approach to personal …
A “Procedural Nightmare”: Dueling Courts And The Application Of The First-Filed Rule, Andrew Fuller
A “Procedural Nightmare”: Dueling Courts And The Application Of The First-Filed Rule, Andrew Fuller
Florida Law Review
Pretend that Party A sues Party B in Court 1. Instead of countersuing, however, B then sues A in Court 2. The problem this Note examines is whether Court 1 may enjoin B from continuing to litigate in Court 2 if Court 2 has already declined to stay the case or transfer it to Court 1. This question has sharply divided the U.S. Circuit Courts of Appeal. How the issue is resolved will have serious consequences for high-stakes litigation in the United States. If one district court may overrule a court of coordinate rank, strategically sophisticated parties might file suits …
Fraudulent Aggregation: The Effect Of Daimler And Walden On Mass Litigation, Jeff Lingwall, Chris Wray
Fraudulent Aggregation: The Effect Of Daimler And Walden On Mass Litigation, Jeff Lingwall, Chris Wray
Florida Law Review
This Article examines the effect of the U.S. Supreme Court’s jurisdictional tightening in Daimler and Walden on mass litigation. This Article shows how the Supreme Court’s changes to general and specific jurisdiction, considered together, end the practice of tactically allocating non-diverse plaintiffs across state lines to defeat diversity jurisdiction in nationwide litigation, a doctrine this Article terms fraudulent aggregation. This Article places the doctrine of fraudulent aggregation in the context of fraudulent joinder, the emerging doctrine of fraudulent misjoinder, and other attempts to avoid federal court jurisdiction through artful pleading. Examples from recent products liability litigation show both the application …
Byte Marks: Making Sense Of New F.R.C.P. 37(E), Charles Yablon
Byte Marks: Making Sense Of New F.R.C.P. 37(E), Charles Yablon
Florida Law Review
New FRCP 37(e) limits severe, case ending sanctions for lost electronically stored information (ESI) to situations where a party acted with “intent to deprive” other parties of the use of that information. But it makes no change in existing preservation duties and never explains how “intent” is to be determined for the corporation and other entities likely to be parties in such litigation. The question is—does this Rule make any sense? This Essay seeks to make sense of Rule 37(e) in terms of its language, the stated goals of its drafters, and its role in the regulation of current litigation …
"Where The Cause Of Action Accrued": How Florida's Venue Statute Violates The Policy It Designed To Protect, Kristin Nelson Royal
"Where The Cause Of Action Accrued": How Florida's Venue Statute Violates The Policy It Designed To Protect, Kristin Nelson Royal
Florida Law Review
Venue is the “proper or a possible place for a lawsuit to proceed,” and its purpose is to ensure all possible fairness and convenience for parties to litigation, especially the defendant. Florida Statute § 47.011 provides three places where venue may be proper: the county where the defendant resides, the county where the cause of action accrued, and the county where the property in litigation is located. Although determining where a defendant lives or where property is located is fairly simple, determining where a cause of action accrued can prove more difficult. In an action for tort, courts have indicated …
Class Actions Removability And The Changing Business Of The Supreme Court: Dart Cherokee Basin Operating Co. V. Owens, Stephen Carr
Class Actions Removability And The Changing Business Of The Supreme Court: Dart Cherokee Basin Operating Co. V. Owens, Stephen Carr
Florida Law Review
Problems of appellate jurisdiction are, by their nature, mainly pragmatic problems. The U.S. Circuit Courts of Appeals are forced to balance the need to provide timely, effective appellate review of district court decisions against the understandable desire for judicial economy.In addition to this inherent tension between fairness and economy, the law is constantly evolving, causing caseloads to wax and wane, and continuously forcing the circuit courts to react by expanding and contracting their rules of appellate jurisdiction. The U.S. Code generally limits appellate review to “final decisions,”and the U.S. Supreme Court has usually instructed the circuit courts to take a …
Intervention In The Tax Court And The Appellate Review Of Tax Court Procedural Decisions, Cole Barnett, Christopher Weeg
Intervention In The Tax Court And The Appellate Review Of Tax Court Procedural Decisions, Cole Barnett, Christopher Weeg
Florida Law Review
The Tax Court is an Article I court. It resolves more than 95% of all tax-related litigation—actually nearly 97% of the total federal tax docket in 2012. Despite this substantial role in federal litigation, scholars and courts have generally put aside the issue of what standard is appropriate when a U.S. federal court of appeals reviews Tax Court procedural questions. Section 7482 of the Internal Revenue Code (I.R.C.) grants jurisdiction to the courts of appeals to review Tax Court decisions “in the same manner and to the same extent as decisions of the district courts in civil actions tried without …
Class Actions Removability And The Changing Business Of The Supreme Court: Dart Cherokee Basin Operating Co. V. Owens, Stephen Carr
Class Actions Removability And The Changing Business Of The Supreme Court: Dart Cherokee Basin Operating Co. V. Owens, Stephen Carr
Florida Law Review
Problems of appellate jurisdiction are, by their nature, mainly pragmatic problems. The U.S. Circuit Courts of Appeals are forced to balance the need to provide timely, effective appellate review of district court decisions against the understandable desire for judicial economy.In addition to this inherent tension between fairness and economy, the law is constantly evolving, causing caseloads to wax and wane, and continuously forcing the circuit courts to react by expanding and contracting their rules of appellate jurisdiction. The U.S. Code generally limits appellate review to “final decisions,”and the U.S. Supreme Court has usually instructed the circuit courts to take a …
Intervention In The Tax Court And The Appellate Review Of Tax Court Procedural Decisions, Cole Barnett, Christopher Weeg
Intervention In The Tax Court And The Appellate Review Of Tax Court Procedural Decisions, Cole Barnett, Christopher Weeg
Florida Law Review
The Tax Court is an Article I court. It resolves more than 95% of all tax-related litigation—actually nearly 97% of the total federal tax docket in 2012. Despite this substantial role in federal litigation, scholars and courts have generally put aside the issue of what standard is appropriate when a U.S. federal court of appeals reviews Tax Court procedural questions. Section 7482 of the Internal Revenue Code (I.R.C.) grants jurisdiction to the courts of appeals to review Tax Court decisions “in the same manner and to the same extent as decisions of the district courts in civil actions tried without …
Reconsidering Indirect-Purchaser Class Actions, Stephen Carr
Reconsidering Indirect-Purchaser Class Actions, Stephen Carr
Florida Law Review
Few issues have proven more vexing to private antitrust enforcement than those related to indirect-purchaser class actions. The current dual system of enforcement—federal and state—exacerbates the difficulty of litigating indirect-purchaser claims by layering procedural complexity on top of substantive complexity and by explicitly allowing (perhaps even incentivizing) duplicative recovery. Almost all commentators are in substantial agreement that reform is necessary, but Congress appears unlikely to take action on the issue in the near future. This Note proposes a procedural solution that would consolidate litigation in a single federal court based on the limited-fund class action model of Federal Rule of …
Reconsidering Indirect-Purchaser Class Actions, Stephen Carr
Reconsidering Indirect-Purchaser Class Actions, Stephen Carr
Florida Law Review
Few issues have proven more vexing to private antitrust enforcement than those related to indirect-purchaser class actions. The current dual system of enforcement—federal and state—exacerbates the difficulty of litigating indirect-purchaser claims by layering procedural complexity on top of substantive complexity and by explicitly allowing (perhaps even incentivizing) duplicative recovery. Almost all commentators are in substantial agreement that reform is necessary, but Congress appears unlikely to take action on the issue in the near future. This Note proposes a procedural solution that would consolidate litigation in a single federal court based on the limited-fund class action model of Federal Rule of …
Reconsidering Indirect-Purchaser Class Actions, Stephen Carr
Reconsidering Indirect-Purchaser Class Actions, Stephen Carr
Florida Law Review
Few issues have proven more vexing to private antitrust enforcement than those related to indirect-purchaser class actions. The current dual system of enforcement—federal and state—exacerbates the difficulty of litigating indirect-purchaser claims by layering procedural complexity on top of substantive complexity and by explicitly allowing (perhaps even incentivizing) duplicative recovery. Almost all commentators are in substantial agreement that reform is necessary, but Congress appears unlikely to take action on the issue in the near future. This Note proposes a procedural solution that would consolidate litigation in a single federal court based on the limited-fund class action model of Federal Rule of …
Thirty-Two Years On The Federal Bench: Some Things I Have Learned, Judge Emmett Ripley Cox
Thirty-Two Years On The Federal Bench: Some Things I Have Learned, Judge Emmett Ripley Cox
Florida Law Review
In this Essay, prepared as the basis for the 2014 Dunwody Distinguished Lecture in Law at the University of Florida Levin College of Law, Judge Cox discusses a few things he learned from his experience as a trial judge and later as an appellate judge. Specifically, he addresses how the proliferation of federal law—both criminal and civil—imposes a real burden on the federal courts. This proliferation has negatively affected pleading and pretrial procedures in the federal court system. Additionally, he discusses what lawyers can do about these pleading and pretrial problems.
Over the course of his career Judge Cox have …
Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash
Constitutional Venue, Peter L. Markowitz, Lindsay C. Nash
Florida Law Review
A foundational concept of American jurisprudence is the principle that it is unfair to allow litigants to be haled into far away tribunals when the litigants and the litigation have little or nothing to do with the location of such courts. Historically, both personal jurisdiction and venue each served this purpose in related, but distinct ways. Personal jurisdiction is, at base, a limit on the authority of the sovereign. Venue, in contrast, aims to protect parties from being forced to litigate in a location where they would be unfairly disadvantaged. The constitutional boundaries of these early principles came to be …
Rule 60(B)(4): When The Courts Of Limited Jurisdiction Yield To Finality, Stephen E. Ludovici
Rule 60(B)(4): When The Courts Of Limited Jurisdiction Yield To Finality, Stephen E. Ludovici
Florida Law Review
It is basic hornbook law—affirmed by courts across time and space repeatedly and unequivocally—that subject-matter jurisdiction cannot be waived. However, in the context of a Rule 60(b)(4) motion seeking relief from a void final judgment after the time for appeal has expired, the onerous standard of review used by courts causes subject-matter jurisdiction to be practically—and frequently—waived in favor of the finality of the judgment. While an onerous standard is tolerable where the court issuing the judgment explicitly found subject-matter jurisdiction, an onerous standard is unacceptable where the court did not do so in light of the federal courts’ limited …
The Lock-In Effect Of Preliminary Injunctions, Kevin J. Lynch
The Lock-In Effect Of Preliminary Injunctions, Kevin J. Lynch
Florida Law Review
One important bias economists and psychologists have identified is the lock-in effect. The lock-in effect causes a decision maker who must revisit an earlier decision to be locked in to that earlier decision. The effect is particularly pronounced where the earlier decision led to the investment of resources that cannot be recovered. Although lock-in does not prevent the decision maker from altering course, it does introduce a systemic bias that should be taken into account.
Preliminary injunctions require judges to assess the merits of a case at an early stage and then revisit the merits later. In the early stages …
Recognizing Discrimination: Lessons From White Plaintiffs, Wendy Parker
Recognizing Discrimination: Lessons From White Plaintiffs, Wendy Parker
Florida Law Review
The Supreme Court has developed a robust equal protection jurisprudence to recognize the rights of whites complaining of race conscious governmental activity. This was particularly reflected in the Court’s opinion in Parents Involved, where the Roberts Court radically repositioned the meaning of Brown v. Board of Education. That opinion all but guarantees that eventually Abigail Noel Fisher will win her case against the University of Texas. In the meantime, however, the case also holds promise for minority plaintiffs. While many have lamented Parents Involved and its use of Brown, we have missed the promise of the Roberts …
Retroactive Application Of State Long-Arm Statutes, Dane Reed Ullian
Retroactive Application Of State Long-Arm Statutes, Dane Reed Ullian
Florida Law Review
A precondition to a court’s exercising any measure of authority over an individual or an entity is the court’s establishment of personal jurisdiction. A court may exercise personal jurisdiction over a nonresident defendant only if the forum state provides a statutory basis for exercising jurisdiction over the nonresident and the exercise of jurisdiction satisfies the constitutional due process standard. Personal jurisdiction is one of the most commonly litigated issues today, due primarily to confusion over the constitutional standard.
Commentators and courts write extensively about the constitutional prerequisites for personal jurisdiction, but say little about state long-arm statutes. Perhaps this should …
Civil Rule 54(B): Seventy-Five And Ready For Retirement, Andrew S. Pollis
Civil Rule 54(B): Seventy-Five And Ready For Retirement, Andrew S. Pollis
Florida Law Review
As we commemorate the diamond anniversary of the Federal Rules of Civil Procedure, this Article takes a critical look at one of the failed Rules: Rule 54(b). Although many commentators have noted difficulties with Rule 54(b), this is the first effort to describe those difficulties comprehensively, analyze their root causes, and offer a workable alternative.
When an order resolves a discrete claim in a multi-claim action, Rule 54(b) permits a district court to sever the order for immediate appeal by “expressly determin[ing] that there is no just reason for delay.” The rule was designed to ease the hardship on litigants …
Flawed But Noble: Desegregation Litigation And Its Implications For The Modern Class Action, Davis Marcys
Flawed But Noble: Desegregation Litigation And Its Implications For The Modern Class Action, Davis Marcys
Florida Law Review
From the perspective of the present day, Rule 23 of the Federal Rules of Civil Procedure contains a difficult puzzle. After a court certifies a class pursuant to Rule 23(b)(3) in a money damages case, absent class members must receive notice and have a chance to opt out. Their counterparts in injunctive or declaratory relief suits prosecuted pursuant to Rule 23(b)(2) do not. As long understood, the class certification decision essentially equals a determination to bind all class members to the eventual judgment. Class members seeking money damages therefore have some control over their rights to sue before these rights …
The End Of An Era: The Supreme Court (Finally) Butts Out Of Punitive Damages For Good, Jim Gash
The End Of An Era: The Supreme Court (Finally) Butts Out Of Punitive Damages For Good, Jim Gash
Florida Law Review
It is finally over. The Supreme Court’s incursion into punitive damages jurisprudence has unceremoniously ended, but not before the Court, under the guise of substantive due process, erected a complex and constitutionally dubious set of rules in an effort to fix the heretofore-intractable multiple punishments problem. As is often the case, the incrementalist approach taken by the Court allowed this conquest to occur somewhat quietly. Professor Pamela Karlan observes that “most constitutional law scholars have hardly noticed that the most significant innovation in substantive due process during the Rehnquist and Roberts Court years” has been the Court’s punitive damages jurisprudence. …
Sequencing The Issues For Judicial Decisionmaking: Limitations From Jurisdictional Primacy And Intrasuit Preclusion, Kevin M. Clermont
Sequencing The Issues For Judicial Decisionmaking: Limitations From Jurisdictional Primacy And Intrasuit Preclusion, Kevin M. Clermont
Florida Law Review
This Article treats the order of decision on multiple issues in a single case. That order can be very important, with a lot at stake for the court, society, and parties. Generally speaking, although the parties can control which issues they put before a judge, the judge gets to choose the decisional sequence in light of those various interests. The law sees fit to put few limits on the judge’s power to sequence. The few limits are, in fact, quite narrow in application, and even narrower if properly understood. The Steel Co.-Ruhrgas rule generally requires a federal court to decide …
A Proposal For Settling The Interpretation Of Florida’S Proposals For Settlement, Lauren Rehm
A Proposal For Settling The Interpretation Of Florida’S Proposals For Settlement, Lauren Rehm
Florida Law Review
Although created to encourage settlement, few rules have generated more collateral litigation than Florida’s proposals for settlement provisions. While Florida Statutes section 768.79 creates a substantive right to attorney’s fees, Florida Rule of Civil Procedure 1.442 provides a procedural enforcement mechanism. However, through its unprecedented application of strict construction to a rule of civil procedure, the Florida Supreme Court has arguably made it more difficult to accomplish settlement by adding new requirements for valid proposals. Thus, with collateral litigation looming over proposals for settlement, burdening court dockets, and costing parties additional time and expense, now is the time to realign …
Erie As A Choice Of Enforcement Defaults, Sergio J. Campos
Erie As A Choice Of Enforcement Defaults, Sergio J. Campos
Florida Law Review
The Erie doctrine governs, among other things, when a federal court sitting in diversity jurisdiction may use a federal procedure that differs from the procedure a state court would use. Displacing the state procedure with the federal procedure (or not) may impact the substantive objectives of either state or federal law, but the current Erie doctrine provides little guidance. This Article argues that the Erie doctrine is best understood as governing a choice of enforcement defaults. As argued below, the primary function of civil liability is to protect a substantive entitlement to avoid the legal violation, either directly through specific …
Distilling Minimum Due Process Requirements For Punitive Damages Awards, Benjamin J. Robinson
Distilling Minimum Due Process Requirements For Punitive Damages Awards, Benjamin J. Robinson
Florida Law Review
No abstract provided.
Qualified Immunitity: When Is A Loss Ultimately A Win?, Michael J. Hooi
Qualified Immunitity: When Is A Loss Ultimately A Win?, Michael J. Hooi
Florida Law Review
No abstract provided.
Does A Cartel Aim Expressly? Trusting Calder Personal Jurisdiction When Antitrust Goes Global?, Larry Dougherty
Does A Cartel Aim Expressly? Trusting Calder Personal Jurisdiction When Antitrust Goes Global?, Larry Dougherty
Florida Law Review
Suppose your law firm represents CrabApple, the large, Californiabased manufacturer of the BuyPod, a portable digital music player. CrabApple also sells songs from its online music store, BuyTunes, for use on the BuyPod. One morning, a class-action antitrust lawsuit lands on your desk. It accuses CrabApple of illegal tying—because the BuyPod is designed to play only music from BuyTunes, and BuyTunes songs only play on BuyPods. CrabApple customers claim the tying has forced them to make unwanted purchases—BuyPod ownersfelt compelled to buy their music from BuyTunes, and anyone who wanted to use BuyTunes had to get a BuyPod. These consumers …
Confusion And Upredictability In Shareholder Derivative Litigation: The Delaware Courts' Response To Recent Corporate Scandals, Ann Scarlett
Confusion And Upredictability In Shareholder Derivative Litigation: The Delaware Courts' Response To Recent Corporate Scandals, Ann Scarlett
Florida Law Review
The Delaware courts responded to the recent wave of corporate scandals, exemplified by Enron and WorldCom, by changing their approach to shareholder derivative litigation. This Article analyzes the Delaware courts’ response to these scandals and concludes that the courts have created doctrinal confusion and introduced unpredictability into derivative litigation. This Article also analyzes the future negative consequences for shareholders, corporations, directors, investors, and other litigants. Finally, this Article proposes improvements for derivative litigation that may alleviate the confusion and unpredictability created by the Delaware courts’ response to the recent scandals