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Articles 31 - 60 of 110
Full-Text Articles in Law
The Parental Kidnapping Prevention Act: Thirty Years Later And Of No Effect? Where Can The Unwed Father Turn?, Rebecca Miller
The Parental Kidnapping Prevention Act: Thirty Years Later And Of No Effect? Where Can The Unwed Father Turn?, Rebecca Miller
Pepperdine Law Review
In 1980, the federal government passed the Parental Kidnapping Prevention Act (PKPA), designed to prevent parents from attempting to “forum shop” to gain an advantage in custody disputes. A recent Utah Supreme Court decision held that jurisdiction challenges under the PKPA are waived if not raised in the lower court. This Article argues that this decision runs counter to the purpose behind the PKPA and sets a dangerous precedent. It calls for the Supreme Court to interpret the ambiguous provisions of the PKPA to resolve inconsistent rulings and protect the rights of unwed fathers.
The Damage Is Done: Ordering A New Trial Based Only On Damages, Katherine Kubale, Richard Bales
The Damage Is Done: Ordering A New Trial Based Only On Damages, Katherine Kubale, Richard Bales
Pepperdine Law Review
Federal Rule of Civil Procedure 59(a) allows trial courts to grant new trials to any or all of the parties, on any or all of the issues, including damages. However, the federal circuits are split on how to handle new trials based solely on damages. One croup of circuits grants partial new trials on damages alone only if the erroneous damage amount did not in any way affect the determination of any other issue. Under this standard, a new trial on damages is allowed when the second jury can evaluate the first damage award without also re-examining other issues, such …
Civil Procedure—Be More Specific: Vague Precedents And The Differing Standards By Which To Apply “Arises Out Of Or Relates To” In The Test For Specific Personal Jurisdiction, Ryne H. Ballou
University of Arkansas at Little Rock Law Review
No abstract provided.
Buying A Judicial Seat For Appeal: Caperton V. A.T. Massey Coal Company, Inc., Is Right Out Of A John Grisham Novel, Richard Gillespie
Buying A Judicial Seat For Appeal: Caperton V. A.T. Massey Coal Company, Inc., Is Right Out Of A John Grisham Novel, Richard Gillespie
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
There But For The Grace Of God Go I: The Right Of Cross-Examination In Social Security Disability Hearings , Bradley S. Dixon
There But For The Grace Of God Go I: The Right Of Cross-Examination In Social Security Disability Hearings , Bradley S. Dixon
Journal of the National Association of Administrative Law Judiciary
No abstract provided.
Supplemental Jurisdiction Over Permissive Counterclaims And Set Offs: A Misconception, Douglas D. Mcfarland
Supplemental Jurisdiction Over Permissive Counterclaims And Set Offs: A Misconception, Douglas D. Mcfarland
Mercer Law Review
In the years prior to 1990, courts extended federal jurisdiction over joined claims and parties in an orderly system. Pendent jurisdiction allowed a plaintiff to join a state law theory of recovery to a federal question theory in the complaint when both arose from a "common nucleus of operative fact."Ancillary jurisdiction allowed a defendant to join a state law claim to a federal claim in a civil action when both arose from the same "transaction or occurrence." Since a compulsory counterclaim arose from the same "transaction or occurrence" and a permissive counterclaim did not, courts had no difficulty in holding …
The California Constitutional Right Of Privacy And Exclusion Of Evidence In Civil Proceedings, Jerry D. Mackey
The California Constitutional Right Of Privacy And Exclusion Of Evidence In Civil Proceedings, Jerry D. Mackey
Pepperdine Law Review
No abstract provided.
Allocation Of Responsibility After American Motorcycle Association V. Superior Court, Erwin E. Adler
Allocation Of Responsibility After American Motorcycle Association V. Superior Court, Erwin E. Adler
Pepperdine Law Review
In its landmark case of Li v. Yellow Cab Co., the California Supreme Court judicially adopted the doctrine of comparative negligence in an action involving a plaintiff and a single defendant. The court in Li specifically avoided making any decision concerning the numerous issues which would be involved in a multi-party action: the relationship of multiple defendants with one another, the right of one defendant to join others for the purpose of sharing payment of the judgment, the respective responsibilities of such parties for the judgment (including those insolvent, partially solvent or possessing an immunity), and the procedure for the …
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. …
Gibson, Dunn & Crutcher V. Superior Court: The Attorney's Right To Cross-Complain For Equitable Indemnification From An Opposing Attorney, Joseph E. Thomas
Gibson, Dunn & Crutcher V. Superior Court: The Attorney's Right To Cross-Complain For Equitable Indemnification From An Opposing Attorney, Joseph E. Thomas
Pepperdine Law Review
No abstract provided.
California Expands Tort Liability Under The Novel Market Share Theory: Sindell V. Abbott Laboratories, N. Denise Taylor
California Expands Tort Liability Under The Novel Market Share Theory: Sindell V. Abbott Laboratories, N. Denise Taylor
Pepperdine Law Review
The California Supreme Court, in the novel and unprecedented case of Sindell v. Abbott Laboratories, eliminated the plaintiffs burden of identification of a negligent party, and thus the causation requirement, in a multiple party tort action. In the course of this decision, the court adopted the "market share" theory of liability which dictated in Sindell that nonidentifiable defendant-manufacturers of the generic drug DES would be liable for the damages in proportion to their share of business in the market. The author thoroughly examines various theories of recovery, such as "alternative liability," "concert of action" and "enterprise liability," which the court …
Molien V. Kaiser Foundation Hospitals: Negligent Infliction Of Emotional Distress, Michael P. Messina
Molien V. Kaiser Foundation Hospitals: Negligent Infliction Of Emotional Distress, Michael P. Messina
Pepperdine Law Review
In Molien v. Kaiser Foundation Hospitals, the California Supreme Court recognized that the interest in freedom from negligent infliction of mental distress is a protectable interest, and that an accompanying physical injury need not exist in order to recover damages. The author presents a discussion of the history and policies behind the right to recover from negligently inflicted emotional distress. The author also discusses and analyzes the court's opinion in Molien and agrees with the court that the fears of opening the floodgate of litigation which before Molien precluded recovery, was arbitrary. Finally, the author concludes that the holding is …
World-Wide Volkswagen Corporation V. Woodson: Minimum Contacts In A Modern World, Craig H. Millet
World-Wide Volkswagen Corporation V. Woodson: Minimum Contacts In A Modern World, Craig H. Millet
Pepperdine Law Review
World Wide Volkswagen Corporation v. Woodson considers the problem of modifying in personam jurisdiction to comply with the changing nature of the American economy. Several lower courts had adjusted the "minimum contacts" test of International Shoe Co. v. Washington to allow for the differences in modern economic lifestyle, but a uniformity amongst the various approaches was lacking. Rather than synthesize a contemporary test for the assertion of in personam jurisdiction, the World- Wide Court chose to place state sovereignty above modern commercial realities and adhere to a more rigid application of the minimum contacts analysis. The author takes issue with …
The New Starker: A Nonsimultaneous Exchange Expands Section 1031/ Collateral Estoppel Clarification, Robert B. Paysinger
The New Starker: A Nonsimultaneous Exchange Expands Section 1031/ Collateral Estoppel Clarification, Robert B. Paysinger
Pepperdine Law Review
The new Starker decision addresses the issue whether a nonsimultaneous exchange qualifies for section 1031 nonrecognition treatment. The Court of Appeals for the Ninth Circuit, in addressing this issue, also had to determine the appropriateness of the collateral estoppel "separable facts" doctrine under the facts in the case. The author provides an in-depth examination of the court's clarification of collateral estoppel and expansion of section 1031. The author, in agreeing with-the decision, welcomes the added flexibility the case lends to the real estate finance field.
Has The Right To A Jury Trial As Guaranteed Under The Seventh Amendment Become Outdated In Complex Civil Litigation?, Georgiana G. Rodiger
Has The Right To A Jury Trial As Guaranteed Under The Seventh Amendment Become Outdated In Complex Civil Litigation?, Georgiana G. Rodiger
Pepperdine Law Review
Recognizing the continually increasing burden placed on the jury in complex litigation cases, the author undertakes an extensive study of the origins of jury trials in the United States and England. Various arguments in favor of eliminating jury trials in complex litigation are discussed, along with a possible constitutional method of limiting the scope of the seventh amendment guarantee. The author also studies the case of Ross v. Bernhardt where the Supreme Court outlined a seldom used three- pronged test to determine whether or not a jury trial is constitutionally appropriate. The comment concludes that the factors in favor of …
Punitive Damages And The Drunken Driver, William C. Cooper
Punitive Damages And The Drunken Driver, William C. Cooper
Pepperdine Law Review
A discussion of the history and theory of punitive damages which results in advocating their application in a drunk driving context after giving due consideration to the pros and cons of such a sanction. An analysis of case law will reveal the underlying rationale that has motivated certain jurisdictions in applying this severe penal approach in an attempt to deter and curtail the senseless destruction on our nation's highways as well as exploring the impetus behind those other jurisdictions that do not utilize the remedy of punitive damages. The culminating focus is on California's position in this regard. Finally, there …
Muko And Conex: The Third Circuit Responds To Connell , Robert A. King, Melvin L. Moser
Muko And Conex: The Third Circuit Responds To Connell , Robert A. King, Melvin L. Moser
Pepperdine Law Review
The authors discuss the application of federal antitrust laws to organized labor. The article, written for practitioners, defines the elements necessary to obtain a recovery in labor antitrust actions. The authors analyze the standard of review, burden of proof and the elements which the unions must show in order to be exempted from antitrust law. The focal point of the article is the comparison between the Supreme Court's most recent discussion of the labor exemption in Connell Construction Co. v. Plumbers & Steamfitters Local Union 100 and the Third Circuit's application of that exemption in Larry V. Muko v. Southwestern …
A Reappraisal Of General And Limited Jurisdiction In California , Thomas Kallay
A Reappraisal Of General And Limited Jurisdiction In California , Thomas Kallay
Pepperdine Law Review
The ability of a California court to assert jurisdiction over business enterprises currently depends upon how the court characterizes the nature and extent of the business's activities within the state. If the in-state business activities of a particular concern are extensive, California courts will exercise all-encompassing general jurisdiction over the cause of action, but if the activities are insufficient to warrant the exercise of general jurisdiction, which has been invariably the case, the court will then turn to a consideration of limited jurisdiction, which jurisdiction depends upon the quality and nature of the business's activities in the forum in relation …
The Use Of Aviation Accident Reports By Civil Litigants: The Historical Development Of 49 U.S.C. Section 1441(E), Walter A. T. Welch Jr., John E. Faulk
The Use Of Aviation Accident Reports By Civil Litigants: The Historical Development Of 49 U.S.C. Section 1441(E), Walter A. T. Welch Jr., John E. Faulk
Pepperdine Law Review
When aviation accidents occur, the National Transportation Safety Board conducts an investigation to determine the conditions, circumstances, and ultimately the probable cause of the accident. There is a federal statutory privilege which renders these reports, as well as testimony from the attending investigator, inadmissible as evidence in any suit or action arising from the accident. However, certain judicially created exceptions have arisen which permit portions of the report and certain investigator testimony to be admitted into evidence. The authors delineate and analyze these exceptions as they discuss the trend toward increased report and testimony admissibility. The authors conclude with a …
Merrill Lynch, Pierce, Fenner & Smith, Inc. V. Curran: Establishing An Implied Private Right Of Action Under The Commodity Exchange Act, Howard E. Hamann
Merrill Lynch, Pierce, Fenner & Smith, Inc. V. Curran: Establishing An Implied Private Right Of Action Under The Commodity Exchange Act, Howard E. Hamann
Pepperdine Law Review
In the case of Merrill Lynch, Pierce, Fenner & Smith, Inc. v. Curran, the United States Supreme Court held that there is an implied private right of action under the Commodity Exchange Act, as amended. As a result of this holding, a private party may maintain an action for damages caused by a violation of the Commodity Exchange Act. In this article, the author examines the Supreme Court's analysis and explores the future impact of the decision in light of the role the judiciary has in legislative matters.
Nixon V. Fitzgerald: Recognition Of Absolute Immunity From Personal Damage Liability For Presidential Acts, Craig B. Forry
Nixon V. Fitzgerald: Recognition Of Absolute Immunity From Personal Damage Liability For Presidential Acts, Craig B. Forry
Pepperdine Law Review
Although traditionally it has been recognized that the President is absolutely immune from personal damage liability for his official acts, there is no precedent for this rule in constitutional text or case law. However, in the case of Nixon v. Fitzgerald, the Supreme Court overruled lower federal courts in establishing a clear precedent for the President's absolute immunity from personal liability for civil damages. The author examines this decision in light of traditional principles of official immunity and analyzes the Court's holding from the standpoint of whether the President is indeed placed "above the law."
The Supreme Court Continues Its Journey Down The Ever Narrowing Paths Of Section 1983 And The Due Process Clause: An Analysis Of Parratt V. Taylor, Robert E. Palmer
The Supreme Court Continues Its Journey Down The Ever Narrowing Paths Of Section 1983 And The Due Process Clause: An Analysis Of Parratt V. Taylor, Robert E. Palmer
Pepperdine Law Review
After nearly a century of quiet slumber, the Supreme Court awoke the sleeping giant. In the past two decades, 42 U.S.C. §1983 has evolved into a judicial Frankenstein monster. Unable to control the beast, the Court has attempted to restrict the creature's movements by unnecessarily limiting its constitutional source. If followed to its logical conclusion, the Court's narrow reading of the Constitution may ultimately demote all due process violations to state tort remedies. This note traces the legislative and judicial evolution of section 1983 as well as the statute's present interaction with the due process clause. The vehicle for this …
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 …
Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality Be A Function Of The Court In Which The Litigation Is Pending?, Rebecca Callahan
Mediation Confidentiality: For California Litigants, Why Should Mediation Confidentiality Be A Function Of The Court In Which The Litigation Is Pending?, Rebecca Callahan
Pepperdine Dispute Resolution Law Journal
The article presents information on mediation confidentiality. Confidentiality protections are available to California litigants depending on whether the litigants are in state or federal court. It depicts that California courts provide protection only when disputants utilize mediation for resolving their differences and also focuses on the evidence exclusion provision in which the privilege held by participant acts as bar to compel discovery without everyone's consent.
Closing The Floodgates: Defining A Class Of Third-Party Plaintiffs For Title Vii Retaliation Claims, Laura Blair Naquin
Closing The Floodgates: Defining A Class Of Third-Party Plaintiffs For Title Vii Retaliation Claims, Laura Blair Naquin
Louisiana Law Review
The article offers information on the law related to retaliation claims made under Title VII of the U.S. Civil Rights Act of 1964. It mentions the third-party plaintiffs' class which is eligible to file retaliation claims. It expresses the need to set standards for third party retaliation claims. It informs that a third party plaintiff who files a claim should have pretext, direct retaliation evidence, and a proof that retaliation is the only cause for an employer's action.
Ruckleshaus V. Sierra Club: Muddying The Waters Of Fee-Shifting In Federal Environmental Litigation , Jeanne A. Taylor
Ruckleshaus V. Sierra Club: Muddying The Waters Of Fee-Shifting In Federal Environmental Litigation , Jeanne A. Taylor
Pepperdine Law Review
In numerous federal environmental statutes, Congress gave plaintiffs the right to recover attorneys' fees when the court finds them "appropriate." In Ruckleshaus v. Sierra Club, the United States Supreme Court held that it was only "appropriate" to grant attorneys' fees when the plaintiff had at least partially prevailed on the merits. The decision ignored both the important role environmental groups play in the interpretation and development of regulatory programs through litigation and the ability of the lower courts to determine when attorneys' fees were "appropriate." The Court, instead, focused on the adversarial nature of such groups and the traditional American …
The Manville Corporation Bankruptcy: An Abuse Of The Judicial Process?, Mark Kunkler
The Manville Corporation Bankruptcy: An Abuse Of The Judicial Process?, Mark Kunkler
Pepperdine Law Review
Federal bankruptcy law offers a refuge to the honest debtor who is unable to pay his creditor's when his debts are due. Here, the twin aims of bankruptcy law, to give the debtor a fresh start and to provide roughly equal treatment for his! Creditors, are laudably accomplished. But what policies support the use of federal bankruptcy law when the "debtor" is in fact solvent and apparently seeks refuge only to escape liability for the products it manufactures? This comment examines the recent filing of the Manville Corporation for Chapter 11 protection under bankruptcy law with this question in mind.
Dissent: Supreme Court Reform: Diversion Instead Of Division, Gerald F. Uelmen
Dissent: Supreme Court Reform: Diversion Instead Of Division, Gerald F. Uelmen
Pepperdine Law Review
No abstract provided.
Sanctions Under California Code Of Civil Procedure Section 128.5: How To Avoid Eating A Piece Of Humble Pie, Tara A. Flanagan
Sanctions Under California Code Of Civil Procedure Section 128.5: How To Avoid Eating A Piece Of Humble Pie, Tara A. Flanagan
Pepperdine Law Review
No abstract provided.